Vazquez v. USA
Filing
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MEMORANDUM OPINION and ORDER. The court ORDERS that the motion of Jesus Francisco Chavez-Salgado to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. (Ordered by Judge John McBryde on 9/17/2012) (npk)
u.s. DISTRICT c6TTI~I:~'"--
NORTHERN" DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEX
FORT WORTH DIVISION
JAIME VAZQUEZ,
SEP 172012
CLERK, U.S. DISTRICT COURT
By _ _
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Movant,
_
~
Deputy
§
§
§
VS.
§
§
UNITED STATES OF AMERICA,
NO. 4:11-CV-756-A
(NO. 4:08-CR-167-A)
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Jaime Vazquez
("movant
lt
)
under 28 U.S.C.
correct sentence.
§
2255 to vacate, set aside, or
Having reviewed the motion, the record, the
government's response, and applicable legal authorities, the
court concludes that none of the grounds have merit and the
motion should be denied.
I.
Background
Movant was indicted on a single count of conspiracy to
possess to distribute more than 50 grams or more of a substance
containing methamphetamine, in violation of 21 U.S.C.
841(a) (1) and 841(b) (1) (B).
count indictment.
§§
846,
Movant pleaded guilty to the one-
Movant made several objections to the
presentence report and renewed such objections at his sentencing
hearing.
The objections relevant to movant's Section 2255 motion
are as follows:
Movant objected to (1) findings that he acquired
six to eight pounds of drugs from one source;
(2) statements by a
co-conspirator, Darrel Murphy ("Murphy") that movant had made
$5,000,000 in drug sales, that Murphy had sold three to five
pounds of drugs per week for movant from November 2007 until
August 2008, and that Murphy picked up two pounds of drugs from
movant's shop to resell in Abilene, Texas; and (3) the conclusion
that he should be held responsible for 58.63 kilograms of
methamphetamine, with a base offense level of 38.
Addendum to
Presentence Report, at 1-2, 5.
Movant was sentenced to a 360-month term of imprisonment and
a five-year term of supervised release.
$25,000 fine.
The court also imposed a
Movant timely appealed his sentence, and the
united states Court of Appeals for the Fifth Circuit affirmed his
conviction and sentence on March 29, 2010.
united States v.
Vazquez, 371 Fed. App'x. 526 (5th Cir. 2010).
denied certiorari on November 1, 2010.
motion seeking relief under 28 U.S.C.
The Supreme Court
Movant timely filed a
§
2255, to which the court
now turns its attention.
II.
Grounds of Motion
Movant identified four grounds for relief in his motion,
asserting that
(1) he was deprived of effective assistance of
2
counsel on direct appeal because of his attorney's "failure to
file a brief that complied with [Anders v. California, 386 U.S.
738
(1967)];
(2) he "received ineffective assistance of counsel
relative to his decision to plead guilty rather than stand
trial;"
(3) his "plea colloquy did not satisfy Rule 11" and that
he did not understand the nature of the charge to which he was
pleading; and (4) the court "erred in failing to make findings
required under 18 U.S.C.
pay fine."
Mot. at 5-9.
§
3572 regarding [movant's] ability to
In his memorandum, movant also appears
to contend that the court erred in calculating his sentence by
"incorrectly" applying an enhancement for movant's leadership
role, determining the quantity of drugs that formed the basis for
his sentence, and considering the "transaction" with a coconspirator as relevant conduct.
Mem. at 14, 24, 32.
Finally,
movant alleges ineffective assistance of counsel at his
sentencing hearing.
Id. at 43.
III.
Analysis
A.
Legal Standard for 28 U.S.C.
§
2255
After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
fairly and finally convicted.
united States v. Frady, 456 U.S.
152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32
3
(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992).
A defendant
can challenge his conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude
only, and may not raise an issue for the first time on collateral
review without showing both "cause" for his procedural default
and "actual prejudice" resulting from the errors.
Shaid, 937
F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial
errors.
It is reserved for transgressions of constitutional
rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.
united States v. Capua, 656 F.2d 1033,
1037 (5th Cir. Unit A Sept. 1981).
In other words, a writ of
habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 U.S. 333, 345 (1974).
Further, if
issues "are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
collateral attack."
(5th Cir. 1979)
Moore v. United States, 598 F.2d 439, 441
(citing Buckelew v. United States, 575 F.2d 515,
517-18 (5thCir. 1978)).
B.
Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim,
movant must show (1) that his counsel's performance fell below an
4
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for his counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Both prongs
of the Strickland test must be met to demonstrate ineffective
assistance.
Id. at 697.
Further," [a] court need not address
both components of an ineffective assistance of counsel claim if
the movant makes an insufficient showing on one."
v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000).
united States
"The likelihood
of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. ct. 770, 792
(2011), and a movant
must prove that counsel's errors "so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."
Pinholster, 131 S. Ct. 1388, 1403
U.S. at 686)).
(2011)
Cullen v.
(quoting Strickland, 466
JUdicial scrutiny of this type of claim must be
highly deferential and the defendant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance.
strickland, 466
U.S. at 689.
In his first ground, movant contends that his appellate
counsel "filed a brief that did not raise any specific grounds
for appeal but only requested that the appellate court review the
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record for errors patent on [its]
face."
Mem. at 2.
More
specifically, he argues that his attorney was ineffective in (1)
"failing to appeal the trial court's application of the
sentencing guidelines" and (2) failing to appeal the court's
consideration of "dismissed charges" in determining movant's
sentence.
Mem. at 4-5.
However, the government correctly points
out that movant's assertions misstate the record.
Vazquez, No. 09-10292
Resp. at 8.;
(5th Cir. Sept. 16, 2009).
As far as the
court's application of sentencing guidelines, movant's attorney
argued extensively on appeal that court's application of such
guidelines was in error.
Vazquez, No. 09-10292, at 5-16.
His
attorney presented the relevant facts and legal issues, and made
sound, well-researched arguments.
rd.
The fact that movant was
ultimately unsuccessful in his appeal does not warrant a
conclusion that counsel was deficient, and movant alleges no
facts that would support such a conclusion.
As far as the attorney's failure to raise the issue
concerning movant's supposed "dismissed charges," such an
argument clearly would have been meritless.
As the government
notes, there were no "dismissed charges" in movant's case, but
even if there had been such charges, the court has the discretion
to consider a wide variety of information and conduct in making a
sentencing determination.
Resp. at 9; 18 U.S.C.
6
§
3661.
Such
information and conduct includes past criminal behavior, whether
or not such behavior resulted in a conviction.
Watts, 519 U.S. 148, 151.
Manual § 1B1.4 (2011).
united states v.
See also, u.S. Sentencing Guidelines
Thus, there is nothing from the record,
movant's motion or memorandum, or movant's brief on appeal to
provide any indication that movant was deprived of the effective
assistance of counsel on appeal, and this claim must fail.
Movant next claims that his counsel was deficient in the
context of movant's decision to plead guilty to the charged
offense, both at his rearraignment and his sentencing hearing.
Mot. at 7; Mem. at 16.
Movant asserts that he was "incorrectly
advised" advised to accept a plea offer, and that "he would not
have accepted the plea offer had he known his true sentencing
exposure at the change of plea hearing."
Mot. at 7; Mem. at 16.
Movant's claim asserting that his attorney incorrectly advised
him to plead guilty is nothing more than a bare assertion, as
movant simply alleges that his attorney misunderstood the
sentencing guidelines, but he provides no facts whatsoever that
could support this allegation.
Mem. at 16.
Movant next complains that his attorney was ineffective in
objecting to the quantity of drugs for which movant was
responsible, and specifically that his attorney failed "to
present a valid argument for exclusion of the prior drug
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transaction" involving a co-conspirator named Murphy ("Murphy").
Id. at 23.
Movant spends minimal time alleging that his attorney
was deficient in focusing his objection on Murphy's credibility,
Id., but uses numerous pages alleging that his transaction with
Murphy should not be considered relevant conduct.
Id. at 24-32.
Here, movant also attempts to revive claims from his direct
appeal, that the court erred in (1) determining the quantity of
drugs attributed to movantj and (2) applying a four-level
enhancement for movant's leadership role.
Mem. at 14, 24-32.
To the extent movant challenges the court's determination of
the drug quantity and the leadership enhancement, those issues
were decided on direct appeal, and movant is barred from pursuing
them in a Section 2255 motion.
F.2d 506, 508 (5th Cir. 1986)
See united States v. Kalish, 780
(" [I]ssues raised and disposed of
in a previous appeal from an original jUdgment of conviction are
not considered in
§
2255 Motions.").
To the extent movant
attempts to fault his attorney for failing to validly object to
the quantity of drugs attributed to movant, the record
demonstrates that movant's attorney objected strongly to such
quantity of drugs, including the fact that the quantity was
derived primarily from movant's dealings with Murphy.
These
objections were made both in movant's objections to the presentence report, filed with the court, and also at movant's
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sentencing hearing.
See Def. 's Objections to Pre-sentence
Report, at 1-2, 4-5; Sentencing Tr. at 9-10, Mar. 20, 2009.
Movant claims that his attorney failed to present evidence to
refute the 58.32 kilogram quantity of drugs; however, movant does
not identify any evidence that his attorney
could have presented.
Such conclusory allegations cannot support
a claim for ineffective assistance of counsel under Strickland.
C.
Claim that Movant's Guilty Plea Was Not Knowing and
Voluntary
Next, movant claims that his plea colloquy failed to satisfy
Rule 11 of the Federal Rules of Criminal Procedure, and that the
court "failed to ensure that he understood the nature of the
conspiracy charge to which he was pleading."
Mot. at 8.
For a
guilty plea to be knowing and voluntary, the defendant must have
"a full understanding of what the plea connotes and of its
consequence." United States v. Hernandez, 234 F.3d 252, 255
(5th
Cir. 2000) (internal quotations and citations omitted). However,
"[t]he defendant need only understand the direct consequences of
the plea; he need not be made aware of every other consequence
that, absent a plea of guilty, would not otherwise occur." rd.
"The consequences of a guilty plea, with respect to sentencing,
mean only that the defendant must know the maximum prison term
and fine for the offense charged."
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Ables v. Scott, 73 F.3d 591,
592 n.2
(5th Cir. 1996) (internal quotations omitted). The
defendant's representations, as well as those of her lawyer and
the prosecutor, and any findings by the judge in accepting the
plea, "constitute a formidable barrier in any subsequent
collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 7374
(1977).
Solemn declarations in open court carry a strong
presumption of truthfulness, and a defendant bears a heavy burden
to show that the plea was involuntary after testifying to its
voluntariness in open court. Deville v. Whitley, 21 F.3d 654, 659
(5th Cir. 1994).
Movant claims that he was confused, and that a review of his
rearraignment demonstrates such confusion; however, the record
clearly establishes otherwise.
The court properly admonished
movant of (1) his constitutional rights;
sentence;
(2) his potential
(3) the role of the sentencing guidelines and the judge
in determining a sentence;
rights and pleading guilty;
(4) the consequences of waiving his
(5) the nature of the charge he
intended to plead guilty to and the elements to that charge; and
(6) the factual basis for his guilty plea.
Factual Resume;
Rearraignment Tr. at 5-14, 16-22, Dec. 5, 2008.
The factual
resume, which movant signed and stated under oath that he had
read and understood, clearly provided movant's potential
penalties, the elements of the offense including that the
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quantity of drugs exceeded 50 grams, and facts demonstrating that
movant was guilty of the offense.
Factual Resume at 1-2.
Movant's statements at his rearraignment show that he made
his plea voluntarily, knowingly, and intelligently.
Movant
stated that he understood all the court's explanations about the
sentencing process, including the fact that the court would rely
heavily on the presentence report in determining movant's
sentence, that his sentence "could be as much as 40 years," and
that he would be bound by his guilty plea even if his sentence
was "more severe than [he] hoped it would be."
at 14, 21, 22.
Rearraignment Tr.
The court specifically asked movant whether he
understood that he was at the hearing "with the intent to plead
guilty to the offense charged by the indictment of this case of
conspiracy to distribute . . . 50 grams or more of
methamphetamine," to which movant replied,
16-17.
"Yes, sir."
rd. at
The court further went over each element of the offense
with movant, after which movant stated that he understood what
the government would have to prove and that he admitted all the
facts to prove the elements existed in his case.
rd. at 18-19.
Movant claims that there was evident confusion in his
exchange with the court regarding who he conspired with and what
a conspiracy is; however, the transcript indicates no confusion
on the part of movant.
Mem. at 35-36; Tr. at 19-20.
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The court
questioned movant about who he conspired with and what activity
took place; movant simply answered the court's questions and
thereby established that he indeed had conspired as stated in the
factual resume.
Tr. at 19-20.
Thus t movant's claim that he
entered a guilty plea unknowingly and that Rule 11 was not
satisfied must fail.
D.
Claim Regarding Imposition of Fine
Movant next claims that the court "erred in failing to make
findings required under 18 U.S.C.
ability to pay fine."
cognizable under
§
Mot. at 9.
§
3572 regarding [movant's]
However t "the types of claims
2255 [are] limited to 'claims relating to
unlawful custodYt' not those relating 'only to the imposition of
a fine.'" United states v. Hatten, 167 F. 3d 884, 887
1999)
(5th Cir.
(quoting united States v. Segler t 37 F.3d 1131 t 1137 (5th
Cir. 1994)).
Thus t movant cannot challenge the court's
imposition of a fine t and this claim must fail.
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IV.
Order
Therefore,
The court ORDERS that the motion of Jesus Francisco ChavezSalgado to vacate, set aside, or correct sentence pursuant to 28
U.S.C.
§
2255 be, and is hereby, denied.
SIGNED September 17, 2012.
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