Vidales v. USA

Filing 11

MEMORANDUM OPINION AND ORDER: Petitioner's § 2255 claims are DENIED with prejudice. (Ordered by Judge Ed Kinkeade on 9/6/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SERGIO MORENO VIDALES,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:15-CV-2139-K
No. 3:11-CR-154-K (17)

MEMORANDUM OPINION AND ORDER
Before the Court is Sergio Moreno Vidales’s (Movant) motion to vacate, set-aside,
or correct sentence pursuant 28 U.S.C. § 2255. For the following reasons, the Court
denies the motion.
I. BACKGROUND
Movant and others were charged by a second superseding indictment with
conspiracy to possess with intent to distribute and distribution of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) and 846 (count one), possession with
intent to distribute methamphetamine in violation of 21 U.S.C. § 841(b)(1)(A)(viii)
(count three), possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A) (count four), and possession of a firearm by an
alien illegally in the United States in violation of 18 U.S.C. §§ 922(g)(5)(A) and
924(a)(2). (Doc. 451.). Unless otherwise indicated, all document numbers refer to the
docket number assigned in the underlying criminal action, 3:11-CR-154-K(17). Movant
pled not guilty, and a jury convicted him of all counts. The Court sentenced him to 276

months in prison for counts one and three to run concurrently with a 120-month
sentence for count four, and to 60 months for count five to run consecutively to the
sentences for counts one, three, and four. (Doc. 502 at 2.) The judgment was affirmed
on appeal. (Doc. 519); United States v. Vidales, No. 13-10894 (5th Cir. July 21, 2014).
Movant raises the following grounds:
(1)

Counsel was ineffective for failing to:
(a)

explain the law of conspiracy to him;

(b)
explain the difference between d-methamphetamine and lmethamphetamine;
(c)

(2)

explain the advantages of pleading guilty and explain that if he pled
guilty his offense level could have been reduced;

The law of conspiracy is unconstitutional.
II. SCOPE OF RELIEF AVAILABLE UNDER § 2255

“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have been raised on direct appeal
and would, if condoned, result in a complete miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks
omitted). It is well-established that “a collateral challenge may not do service for an
appeal.” United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting
United States v. Frady, 456 U.S. 152, 165 (1982)).

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A failure to raise a claim on direct appeal may procedurally bar an individual from
raising the claim on collateral review. United States v. Willis, 273 F.3d 592, 595 (5th Cir.
2001). Defendants may only collaterally attack their convictions on grounds of error
omitted from their direct appeals upon showing “cause” for the omission and “actual
prejudice” resulting from the error. Shaid, 937 F.2d at 232. However, “there is no
procedural default for failure to raise an ineffective-assistance claim on direct appeal”
because “requiring a criminal defendant to bring [such] claims on direct appeal does not
promote the[] objectives” of the procedural default doctrine, “to conserve judicial
resources and to respect the law’s important interest in the finality of judgments.”
Massaro v. United States, 538 U.S. 500, 503-04 (2003). The Government may also waive
the procedural bar defense. Willis, 273 F.3d at 597.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the United States Constitution provides in relevant part
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” U.S. Const. art. VI. The Sixth Amendment
guarantees a criminal defendant the effective assistance of counsel, both at trial and on
appeal. Strickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387, 396
(1985). To successfully state a claim of ineffective assistance of counsel, the prisoner
must demonstrate that counsel’s performance was deficient and that the deficient

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performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). A failure to establish either prong of the Strickland test requires a finding
that counsel’s performance was constitutionally effective. See 466 U.S. at 696. The
Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n.14
(2000).
In determining whether counsel’s performance is deficient, courts “indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
assistance.” Strickland, 466 U.S. at 689. “The reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or actions.”
Id. at 691. To establish prejudice, a movant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694; Williams v. Taylor, 529 U.S. 362,
393 n.17 (2000) (inquiry focuses on whether counsel’s deficient performance rendered
the result of the trial unreliable or the proceeding fundamentally unfair). Reviewing
courts must consider the totality of the evidence before the finder of fact in assessing
whether the result would likely have been different absent counsel’s alleged errors.
Strickland, 466 U.S. at 695-96.
To show prejudice in the sentencing context, the movant must demonstrate that
the alleged deficiency of counsel created a reasonable probability that his or her sentence

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would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001)
(holding “that if an increased prison term did flow from an error [of counsel] the
petitioner has established Strickland prejudice”). One cannot satisfy the second prong
of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008,
1012 (5th Cir. 1992). Conclusory allegations are insufficient to obtain relief under §
2255. United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989); United States v.
Daniels, 12 F. Supp. 2d 568, 575-76 (N.D. Tex. 1998); see also Miller v. Johnson, 200 F.3d
274, 282 (5th Cir. 2000) (holding that “conclusory allegations of ineffective assistance
of counsel do not raise a constitutional issue in a federal habeas proceeding”).
A.

Law of Conspiracy
Movant contends that trial counsel was ineffective for failing to explain the law

of conspiracy. The indictment alleged that Movant and others conspired to possess with
intent to deliver methamphetamine, and it alleged specific acts of the defendants that
were performed as part of the conspiracy. He does not allege what in particular counsel
failed to explain to him about the law of conspiracy. He is not entitled to relief on his
conclusory claim. See Woods, 870 F.2d at 288 n.3.

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B.

Type of Methamphetamine

Movant contends that counsel was ineffective for failing to explain the difference
between d-methampetamine and l-methamphetamine. He asserts that had counsel done
so, he would have likely pled guilty.
D- and l-methamphetamine are isomers or different types of methamphetamine.
United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). The difference between the
isomers is irrelevant for purposes of the elements of the offense and guilt. Id. After a
1995 amendment to the United States Sentencing Guidelines, there is no distinction
between the two isomers in the sentencing guidelines. United States v. Ramirez, 804 F.3d
700, 701-02 (5th Cir. 2015).
Movant does not allege what in particular counsel failed to explain about the
different isomers of methamphetamine. He does not allege how any explanation about
the different isomers would have affected his decision to plead guilty. He is not entitled
to relief on his conclusory claim. See Woods, 870 F.2d at 288 n.3.
C.

Advice Regarding Guilty Plea
Movant contends that counsel was ineffective for failing to advise him about the

advantages of pleading guilty. Specifically, he asserts that counsel failed to inform him
that the offense level would be reduced if he pled guilty. He appears to refer to
reductions in the offense level for acceptance of responsibility. He claims that had he
been so advised, he would have pled guilty.

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A movant is entitled to an evidentiary hearing on his § 2255 motion only if he
presents “independent indicia of the likely merit of [his] allegations.” United States v.
Reed, 719 F.3d 369, 373 (5th Cir. 2013). “[B]are, conclusory allegations unsupported
by other indicia of reliability in the record, do not compel a federal district court to hold
an evidentiary hearing.” Ross v. Estelle, 694 F.2d 1008, 1012 n. 2 (5th Cir. 1983); accord
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (noting that “[i]f the
defendant produces independent indicia of the likely merit of her allegations, typically
in the form of one or more affidavits from reliable third parties, she is entitled to an
evidentiary hearing on the issue”); United States v. Auten, 632 F.2d 478, 480 (5th Cir.
1980) (noting that mere conclusory allegations are not sufficient to support a request
for an evidentiary hearing).
At a status conference on May 12, 2012, the Court made certain that Movant
understood that the Government was planning on re-indicting him, which could raise
the minimum sentence from ten years to fifteen years, but that if he pled guilty, he could
do so under the ten-year minimum. (Doc. 538 at 7.) He said that he would plead guilty
if he received the same plea agreement as a co-defendant. (Id. at 8.) He was told that
he would not receive that same plea agreement. (Id. at 8-9.) The Government discussed
the evidence that would be presented at trial. (Id. at 11-13.) The Government stated
that he could plead guilty to one count of possession with intent to deliver a controlled

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substance. (Id. at 14.) Otherwise, he would be re-indicted with additional charges for
conspiracy and for possessing a firearm in the course of drug trafficking. (Id.) He stated
that if he did not obtain the same plea deal as the co-defendant, then the possibility of
a lengthier sentence upon re-indictment did not matter to him and, based on the
Government’s evidence, he would go to trial. (Id. at 15, 17.) A later letter to the Court
confirmed that he was firm in his decision to go to trial. (Doc. 449 at 1.) Thus, his
primary concern was getting the same plea agreement as a co-defendant. The possibility
of facing additional charges and a potentially lengthier sentence did not matter to him.
His statements at the status conference strongly indicate that he would not have pled
guilty in return for reductions to the offense level for acceptance of responsibility.
Moreover, at sentencing, Movant stated that he had not reviewed the presentence
report (PSR) with counsel. (Doc. 508 at 4.) Counsel said that she went over the PSR
with him, but he told her that he did not care about it. (Id. at 5.) Later in the
sentencing hearing, Movant indicated he was aware of information in the PSR, such as
the offense level. (Id. at 6.) Movant said that she told him his offense level, but he was
not aware of the contents of the PSR. (Id.) The Court did not find him credible
regarding his in-court statements about the extent to which counsel explained the PSR
to him. (Id.)
Movant has not presented independent indicia of counsel’s alleged failure to
advise him about possible reductions for acceptance of responsibility by pleading guilty.

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The record shows that such reductions would not have mattered to him in deciding to
plead guilty and that Movant previously misrepresented what counsel had told him
regarding sentencing. Based on the foregoing, he is not entitled to an evidentiary
hearing or relief on his conclusory claim.
IV. CONSTITUTIONALITY OF CONSPIRACY LAW
Movant contends that the conspiracy law is unconstitutionally vague because it
fails to state what conduct is prohibited and it allows one conspirator to be convicted
but fails to punish unknown conspirators. This claim is procedurally barred, because he
did not raise this claim on appeal. See Willis, 273 F.3d at 595. He has not shown cause
or prejudice to overcome the bar. See Shaid, 937 F.2d at 232.
Additionally, he does not allege how the conspiracy law or statute is
unconstitutionally vague. He is not entitled to relief on his conclusory claim. See Woods,
870 F.2d at 288 n.3.
Moreover, the conspiracy statute, 21 U.S.C. § 846, has survived challenges to it
as unconstitutionally vague. United States v. Alvarez, 2016 WL 6778535 at *2 (S.D. Tex.
Nov. 15, 2016) (citing United States v. Cooper, 606 F.2d 96, 98 (5th Cir. 1979); see also
United States v. Collins, 272 F.3d 984, 988-89 (7th Cir. 2001).

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V. CONCLUSION
For the foregoing reasons, Petitioner’s § 2255 claims are DENIED with prejudice.
IT IS SO ORDERED.
Signed September 6th, 2017.

________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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