Banda v. United States of America

Filing 12

MEMORANDUM OPINION AND ORDER: The Court DENIES Banda's 2 motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255. (Ordered by Judge Ed Kinkeade on 3/5/2015) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ISRAEL BANDA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

'
'
'
'
'
'
'

3:13-CV-3590-K
(3:11-CR-147-K-22)

MEMORANDUM OPINION AND ORDER
Petitioner Israel Banda, a federal prisoner, has filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255.

See No. 3:13-CV-3590-K, Dkt. Nos. 4 & 5. For the

reasons that follow, it is ordered that his motion be DENIED.
I.

Background

Banda was named in a single-count superseding indictment, charging him with
conspiracy to possess with intent to distribute, and distribution of, a controlled
substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(viii), on June
21, 2011. See Dkt. No. 75.
On January 4, 2012, Banda’s original court-appointed attorney, Juan Carlos
Sanchez, was allowed to withdraw, and Carolyn Hill was substituted as attorney of
record. See Dkt. No. 289.
On July 31, 2012, pursuant to a plea agreement, Banda pleaded guilty. See Dkt.
Nos. 459-461, 465, 466. And on October 30, 2012, he was sentenced to 120 months’
imprisonment. See Dkt. No. 514. As explained in the Statement of Reasons

accompanying the Judgment, while the advisory guideline range associated with
Banda’s conviction was 262 to 327 months’ imprisonment, after considering the
factors of the advisory guidelines and the statutory concerns listed in 18 U.S.C. §
3553(a), the Court found that a term of 120 months’ imprisonment – the mandatory
minimum statutory sentence – was appropriate. See Dkt. No. 515; see also Dkt. No. 486
(the presentence report (“PSR”)).
On November 6, 2012, Banda filed a pro se notice of appeal. See Dkt. No. 521.
Ms. Hill filed a notice of appeal on Banda’s behalf the same day. See Dkt. No. 522.
Banda then filed a pro se motion dismissing the appeal on November 15, 2012, see Dkt.
No. 530, and the next day filed his first motion to vacate sentence under 28 U.S.C. §
2255, see Dkt. No. 535. The United States Court of Appeals for the Fifth Circuit
dismissed Banda’s direct appeal on November 30, 2012. See Dkt. No. 548. And Ms.
Hill was allowed to withdraw as his attorney on December 19, 2012. See Dkt. Nos. 539
& 553.
On December 27, 2012, Banda moved to withdraw his initial Section 2255
motion [Dkt. No. 535], and the Court granted his motion on January 7, 2013. See No.
3:12-CV-4677-K, Dkt. Nos. 5 & 6.
Banda’s current habeas petition is timely. See 28 U.S.C. § 2255(f)(1).
II.

Habeas Claims

Following conviction and exhaustion or waiver of the right to direct appeal, a

-2-

court presumes that a petitioner stands fairly and finally convicted. See United States v.
Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d
228, 231-32 (5th Cir. 1991) (en banc)); see also United States v. Willis, 273 F.3d 592,
595 (5th Cir. 2001). Under 28 U.S.C. § 2255, a petitioner can collaterally challenge
his conviction only on constitutional or jurisdictional grounds. Furthermore, Banda
voluntarily pleaded guilty and waived his right to collaterally attack his conviction,
except for claims (1) challenging the voluntariness of (a) his guilty plea or (b) the
waiver in the plea agreement and (2) asserting ineffective assistance of counsel. See
Dkt. No. 459, ¶ 11.
All four of Banda’s habeas claims assert that his counsel, Ms. Hill, was
constitutionally ineffective because – Banda argues – (1) counsel failed to file an appeal
as instructed; (2) counsel failed to adequately argue Banda deserved guideline
reductions for minor role and safety valve; and (3) he plead guilty based on counsel’s
erroneous advice.
The Court reviews Sixth Amendment ineffective-assistance-of-counsel claims
under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, Banda must demonstrate that the performance of his attorney fell
below an objective standard of reasonableness. See 466 U.S. at 687-88. To be
cognizable under Strickland, counsel’s error(s) must be “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at

-3-

687. Banda also must prove that he was prejudiced by his attorney’s substandard
performance. See id. at 687, 692. “This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at
687.
A.

Alleged Ineffectiveness—Notice of Appeal [Ground One]

“The general rule announced in Strickland ... is modified when the complained of
performance results in the actual or constructive denial of any assistance of appellate
counsel.” United States v. Cooley, 549 F. App’x 307, 308 (5th Cir. Dec. 19, 2013) (per
curiam) (quoting Harris v. Day, 226 F.3d 361, 364 (5th Cir. 2000)).
[I]f the petitioner is able to demonstrate by a preponderance of the
evidence that he requested an appeal, prejudice will be presumed and the
petitioner will be entitled to file an out-of-time appeal, regardless of
whether he is able to identify any arguably meritorious grounds for
appeal that would not be precluded by the terms of his appeal waiver.
United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); see also United States v. Cong
Van Pham, 722 F.3d 320, 323-24 (5th Cir. 2013) (discussing Roe v. Flores-Ortega, 528
U.S. 470, 476-77 (2000) (in which “the Supreme Court elucidated how the Strickland
test applies in the context of counsel’s failure to file an appeal ‘when the defendant has
not clearly conveyed his wishes [regarding an appeal] one way or the other’”)). This
presumption of prejudice “applies even ‘in cases involving appeal waivers that also
include [ ] a waiver of collateral review.’” Cooley, 549 F. App’x at 308 (quoting Tapp,
491 F.3d at 265).

-4-

Thus, “[t]he law is clear that, if a defendant requests counsel to file a notice of
appeal, counsel’s failure to do so constitutes ineffective assistance, entitling the
defendant to an out-of-time appeal.” United States v. Rodriguez, Criminal No. H–05–
0350, Civil No. H–08–2991, 2011 WL 5358685, at *5 (S.D. Tex. Nov. 3, 2011)
(citation omitted). And “the Fifth Circuit has held that, where a defendant alleges in a
section 2255 motion that counsel failed to follow his instructions to appeal, the
district court [generally] must hold an evidentiary hearing to determine whether the
request was made.” Id. (collecting cases); see, e.g., Barajas-Sanchez v. United States, Nos.
3:11–CV–3226–K, 3:09–CR–290–K(02), 2012 WL 6049008, at *5 (N.D. Tex. Dec. 4,
2012) (“Contested issues cannot be decided on the basis of affidavits alone unless
supported by other evidence in the record, United States v. Hughes, 635 F.2d 449, 451
(5th Cir. 1981), and whether an appeal was requested is a contested issue where a
movant alleges in a § 2255 motion that he requested that his attorney file an appeal,
and counsel submits an affidavit stating that his client did not make this request.” (also
citing United States v. Thomas, 216 F.3d 1080, 2000 WL 729135, at *1 (5th Cir. May
15, 2000) (per curiam))).
But, if the record in a particular case conclusively shows whether and when a
defendant requested that his counsel file an appeal, an evidentiary hearing is not
necessary. Cf. United States v. Sheid, 248 F. App’x 543, 545 (5th Cir. Sept. 20, 2007)
(per curiam) (citing Tapp, 491 F.3d at 266). This exception to the general rule is

-5-

illustrated by Kendrix v. United States, Nos. 3:11–CV–2866–P, 3:06–CR–350–P(11),
2012 WL 3101296 (N.D. Tex. July 31, 2012):
[T]he Fifth Circuit has held that a hearing must be held where there is a
contested issue or where the record does not conclusively show whether
and when a movant requested that a notice of appeal be filed. In this
case, however, there is no contested issue. Furthermore, the record is
clear that movant asked to file an appeal immediately after he was
sentenced. Specifically, movant asserts in his affidavit that he asked for
counsel to file an appeal right after sentencing, and counsel agrees.
Movant, through his reply brief, was given an opportunity to contest
counsel's sworn statement that he then counseled movant about an
appeal and that movant then declined. Movant did not contest this
characterization of events. No evidentiary hearing is required, when “the
motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255. Because there is no
contested issue, and the record is not in dispute, movant is not entitled to
either an evidentiary hearing or relief on this issue.
Id. at *6.
In his signed memorandum of law in support of the habeas application – which
Banda “swear[s] or affirm[s] under penalty of perjury … is true and correct” [Dkt. No.
5 at 14] – Banda states counsel fail[ed] to consult with him and/or [ ] fail[ed] to file a
notice of appeal on his behalf.” Id. at 3; see also id. at 4 (“[D]efense counsel’s failure to
file a notice of appeal that would have allowed Banda the opportunity to contest the
district court’s ruling was per se ineffective assistance of counsel.”).
But this claim is conclusively undercut by the record in this case. Not only was
the notice of appeal counsel filed on Banda’s behalf [Dkt. No. 522] on November 6,
2012 timely, see FED. R. APP. P. 4(b)(1)(A), but that notice was only filed after Banda

-6-

himself filed a pro se notice of appeal [Dkt. No. 521]. See No. 3:13-CV-3590-K, Dkt.
No. 9-1, Carolyn A. Hill Aff., at 53 (“I was never contacted directly by Defendant
regarding his wish to appeal. On November 6, 2012, I was informed by ECF that
Defendant filed his own appeal and I timely filed a Notice of Appeal on November 6,
2012.”). Therefore, the record conclusively establishes that counsel filed a notice of
appeal on Banda’s behalf. Through the opportunity to file a reply, moreover, Banda
could have contested counsel’s sworn affidavit. He did not avail himself of that
opportunity. Consequently, there is no contested fact issue as to Banda’s
ineffectiveness claim based on his discredited claim that counsel failed to follow his
instructions to appeal. Thus, “[b]ecause there is no contested issue, and the record is
not in dispute, [Banda] is not entitled to either an evidentiary hearing or relief on this
issue.” Kendrix, 2012 WL 3101296, at *6.
B.

Alleged Ineffectiveness—Guideline Objections [Grounds Two
and Three]

Banda next argues that his counsel was ineffective because she failed to
adequately and/or effectively argue that Banda should have received a minor role
adjustment under USSG § 3B1.2 and that Banda qualified for safety valve
consideration under USSG § 5C1.2 and 18 U.S.C. § 3553(f). See Dkt. No. 5 at 7-10.
Banda’s counsel, however, raised both arguments in Banda’s objections to the
PSR, see Dkt. No. 493 at 4-5, and argued at sentencing that Banda “should have
received a safety valve reduction and that [Banda’s] participation was minimal[,]” No.
-7-

3:13-CV-3590-K, Dkt. No. 9-1 at 52. And the Court overruled Banda’s objections to
the PSR and found that a term of 120 months’ imprisonment – the mandatory
minimum statutory sentence – was appropriate. See Dkt. No. 515.
Simply put, “[b]ecause counsel raised [these] objection[s] and [they were]
overruled by the Court, [Banda] cannot establish that he was subjected to any
increased jail time as a result of his attorney’s deficient performance.” Perez v. United
States, Nos. 3:07–cr–154–K(11), 3:12–cv–4144–K, 2013 WL 518660, at *2 (N.D.
Tex. Feb. 12, 2013); see Ramsey v. United States, Civil Action No. 3:05-CV-0357-L, No.
3:00-CR-0389-L-01, 2007 WL 2398499, at *13 (N.D. Tex. Aug. 22, 2007) (“With
respect to the alleged failure of counsel to object to double counting that allegedly
occurred when his sentence was enhanced based upon his role in the offense, the Court
finds that counsel in fact objected to perceived double counting at sentencing. The
Court overruled the objections. The Court finds no deficiency of counsel related to the
alleged failure to object to double counting.” (record citations omitted)).
C.

Alleged Ineffectiveness—Guilty Plea [Ground Four]

Finally, Banda contends that his counsel, in advising him as to whether to plead
guilty, failed to explain to him that the amount of drugs to which he was pleading
guilty carried a mandatory statutory minimum sentence. See No. 3:13-CV-3590-K,
Dkt. No. 5 at 11-13.
Ergo, had Banda’s attorney fully explained to him that a mandatory
minimum attaches to 450 grams of Methamphetamine, and that, the
-8-

sentencing range of 70-87 months was not guaranteed, there’s a
reasonable probability that, but for counsel’s errors, Banda would [not]
have pleaded guilty and would have insisted on going to trial.
Id. at 12 (bracket in original).
A guilty plea is valid only if entered voluntarily, knowingly, and intelligently,
“with sufficient awareness of the relevant circumstances and likely consequences.”
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citing Brady v. United States, 397 U.S.
742, 748 (1970)). A plea is intelligently made when the defendant has “real notice of
the true nature of the charge against him,” Bousley v. United States, 523 U.S. 614, 618
(1998) (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)), and a plea is
“voluntary” if it does not result from force, threats, improper promises,
misrepresentations, or coercion, see United States v. Amaya, 111 F.3d 386, 389 (5th Cir.
1997).
The Fifth Circuit has identified three core concerns in a guilty plea proceeding:
(1) the absence of coercion; (2) a full understanding of the charges; and (3) a realistic
appreciation of the consequences of the plea. See United States v. Gratia, 983 F.2d 625,
627-28 (5th Cir. 1993). Compliance with the admonishments required under Rule 11
of the Federal Rules of Criminal Procedure provides “prophylactic protection for the
constitutional rights involved in the entry of guilty pleas.” See id. at 627.
Banda’s assertion – that he plead guilty on the advice of counsel that he would
not be subject to a mandatory statutory minimum sentence and, instead, would receive

-9-

a considerably lower guideline sentence – is belied by the transcript of Banda’s July 2,
2012 re-arraignment. See, e.g., Dkt. No. 621 at 6:13-15 (the Court explained to Banda
that “[i]n federal court the judge determines the penalty whether the defendant is
convicted upon a plea of guilty or upon a jury verdict”); 6:27-7:13 (the Court
cautioned Banda – and he acknowledged that he understood – that he “should never
depend or rely upon any statement or promise by anyone, whether connected with law
enforcement, the government, your attorney or anyone else as to what the penalty will
be”); 7:20-8:22 (Banda acknowledged that he understood the Court’s advisories as to
the sentencing guidelines, including that “[t]he district judge will not be able to
determine the guideline range until after a presentence report has been prepared, and
you and the government have had an opportunity to challenge the facts and the
conclusions reported by the probation officer”); 12:12-13:10 (Banda acknowledged
that, by pleading guilty, he understood he was facing “[a] term of imprisonment of not
less than ten years”).
This sworn testimony carries a strong presumption of verity in this – a
subsequent post-conviction – proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74
(1977); United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002). And
“[n]othing in the record supports [Banda’s] conclusory and self-serving assertion that
his plea was improperly induced, involuntary, or made without understanding of its
consequences.” United States v. Presley, Nos. 3:12–CV–0978–P, 3:07–CR–0338–P(01),

-10-

2012 WL 3184467, at *2 (N.D. Tex. Aug. 6, 2012) (citing Salazar v. United States, No.
3:08–CV–1799–L, 2008 WL 4791461 at *3 (N.D. Tex. Oct. 31, 2008) (conclusory
assertions in section 2255 motion do not overcome presumption of verity attached to
prior testimony that guilty plea was knowing and voluntary)). The Court therefore
finds no merit to Banda’s claim that his plea of guilty was not voluntary, knowing, and
intelligent.
III.

Evidentiary Hearing

Upon review of the motion to vacate and the files and records of this case, an
evidentiary hearing appears unnecessary. No evidentiary hearing is required if “the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In this instance, the matters reviewed by
the Court conclusively show that movant is entitled to no relief.
IV.

Conclusion

For the foregoing reasons, the Court DENIES Banda’s motion to vacate, set
aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.
SO ORDERED.
Signed March 4th, 2015.

ED KINKEADE
UNITED STATES DISTRICT JUDGE

-11-