Velasquez v. USA
Filing
5
Order Resolving Motion for Relief Under 28 USC 2255 and Order Denying Certificate of Appealability. cy to Orlean Velasquez (Ordered by Judge Terry R Means on 11/8/2012) (wrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ORLEAN ARTURO VELASQUEZ
§
§
§
CIVIL NO.4:12-CV-251-Y
§ (Criminal No.4:10-CR-066-Y(6))
§
VS.
UNITED STATES OF AMERICA
ORDER RESOLVING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
Now pending before the Court is defendant Orlean Arturo
Velasquez’s form motion for relief under 28 U.S.C. § 2255, an
accompanying
declaration.1
response.
memorandum
in
support,
and
his
April
14,
2012,
As directed by the Court, the government filed a
Velasquez
did
not
file
a
reply.
After
careful
consideration and review of defendant Velasquez’s motion under §
2255, the memorandum in support and declaration, the government's
response, the file and record of this case, and the applicable law,
the Court concludes that Velasquez’s § 2255 motion must be denied
for the reasons stated by the government and as noted here.
Velasquez’s conviction and sentence arise from his agreement
with Jose’ Danilo Quiroz Jr., Jose Danilo Quiroz Sr., Moises Alirio
Alvarez, Luis Alonzo Molina, Dimas Humberto Pena, and Sandra
Montoya-Amaya to conduct an armed, home-invasion robbery of a drug
1
The form § 2255 motion, memorandum, and two-page declaration were all
filed as one document on the docket with the ECF-imaged pages numbered as 1-23.
It appears in putting the papers together, Velasquez mixed one page from his
declaration with a page from his memorandum. ECF-stamped page 21 is actually
page two of Velaquez’s memorandum of law, and ECF-stamped page nine is actually
page two of Velasquez’s declaration. As counsel for the government noted this
to the Court and responded accordingly, the Court will consider the papers as
docketed, and refer to each page through the ECF-imaged number.
stash house they believed contained 20-to-30 kilograms of cocaine.
(Velasquez’s Factual Resume (FR) at ¶¶ 2-10.) After stealing the
cocaine, Velasquez and his co-conspirators were going to divide the
cocaine and sell it. (FR ¶ 5.) All defendants were arrested before
the home invasion took place, their agreement and plan having been
witnessed and recorded by undercover officers. (FR ¶¶ 9-11.)
In June 2010, Velasquez pleaded guilty to one count of
conspiracy
to
possess
a
controlled
substance
with
intent
to
distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1) and
(b)(1)(A). The Court sentenced Velasquez to a term of 135 months’
imprisonment (the bottom of the guideline range), along with a
five-year term of supervised release. Although Velasquez filed a
direct appeal, raising a challenge to the Court’s calculation of
the guideline range through application of the drug guideline,
U.S.S.G. § 2D1.1, rather than the robbery guideline, U.S.S.G. §
2B3.1, the United States Court of Appeals for the Fifth Circuit
affirmed the conviction and sentence.2
The instant § 2255 motion
was timely filed.
Velasquez seeks relief under 28 U.S.C. § 2255 on the basis
that his counsel provided ineffective assistance by (1) failing to
argue to this Court that he agreed only to commit a robbery of
money and not a conspiracy to possess drugs, and as a result his
plea cannot be considered knowing and voluntary; and (2) failing to
2
United States v. Velasquez, 428 Fed. Appx. 273 (5th Cir. May 17, 2011).
2
move to suppress his statements made to government agents after his
arrest. (Motion at 4, § 12 (A) and (B); Memorandum at 21,10;
Declaration at 9, ¶¶ 4-8.)
Velasquez’s
only
allegations
before
the
Court
are
for
ineffectiveness of counsel. The now-familiar, two-pronged standard
for review of ineffective-assistance-of-counsel claims was set
forth by the Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984):
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. 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. Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.3
The
burden
is
on
the
defendant
to
show
that
his
counsel’s
representation fell below an objective standard of reasonableness
by identifying acts or omissions of counsel “that are . . . not .
. . the result of reasonable professional judgment.”4 A district
court then determines whether, “in light of all the circumstances,
the identified acts or omissions were outside the wide range of
professionally
competent
assistance.”5
3
Strickland, 466 U.S. at 687.
4
Id. at 690.
5
Id.
3
There
is
a
strong
presumption that the performance of counsel “falls within the wide
range of reasonable professional assistance.”6 A defendant must
also affirmatively prove prejudice by showing that a particular
error of counsel actually had an adverse effect on the defense, an
adverse effect being shown, in turn, by demonstrating a “reasonable
probability that, but for the counsel’s unprofessional errors, the
result of the proceeding would have been different.”7 This showing
“requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.”8
To demonstrate prejudice in the context of a
guilty plea, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”9
“Recognizing the ‘temptation for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence,’” the
Supreme
Court
recently
re-emphasized
“that
counsel
should
be
‘strongly presumed to have rendered adequate assistance and made
all significant decisions in exercise of reasonable professional
judgment.’”10
The Supreme Court also cautioned that ineffective-
assistance claims “can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial . . . .”11
6
United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995); see also King
v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.), cert den’d, 489 U.S. 1093 (1989).
7
Strickland, at 694 (general discussion at pp. 691-695).
8
Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)(citing Harrington v.
Richter, 131 S.Ct. 770, 791 (2011)).
9
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
10
Pinholster, 131 S.Ct. at 1403 (citing Strickland, 466 U.S. at 690)).
11
Harrington v. Richter, 131 S.Ct. 770, 788 (2011).
4
Thus, the high court admonished that “the Strickland standard must
be applied with scrupulous care, lest ‘intrusive post-trial inquiry
threaten the integrity of the very adversary process the right to
counsel is meant to serve.’”12
Ineffective Assistance–-Knowing and Voluntary Nature of Plea
Velasquez accuses his counsel, J. Steven Bush, of “failing to
investigate the facts and law surrounding the case,” which he
argues, in turn, caused Bush to give him wrong advice (Mot. at 4 §
12(A); Memorandum at 21.) He alleges Bush told him that “the
government could have chose [sic] to indict under the robbery
charges but that they chosed [sic] to indict under [the] drug
conspiracy.” (Memorandum at 16.)
learned
that
counsel
was
Velasquez contends he “has now
wrong”
because,
he
argues,
“[t]he
government cannot choose to indict either under the drug conspiracy
or the robbery conspiracy if [he] did not conspire for both
crimes.” (Memorandum at 17.) In this regard, he also writes that he
“agreed
to
commit
robbery
to
steal
money
government’s burden to prove otherwise.” Id.
and
it
was
the
Velasquez contends
counsel “should have made the government prove that [he] knew that
he was going to a robbery of a stash house where drugs were kept,”
and that “[u]nder these circumstances the government erroneously
indicted [him] in a drug conspiracy and didn’t charge [him] with
conspiracy to steal money which was the robbery he agreed to.”
(Memorandum at 18.) Velasquez argues that as a result, Bush gave
12
Id. (citing Strickland, 466 U.S. at 689-690).
5
him wrong advice and his “plea agreement cannot be considered
knowingly under the circumstances.” (Memorandum at 18.)
The record shows that Velasquez signed a factual resume
containing a stipulation of facts, and then pleaded guilty at a
rearraignment proceeding to the charge of conspiracy to possess a
controlled substance with intent to distribute.
plea
relinquishes
rights
of
the
defendant,
Because a guilty
“the
Constitution
insists, among other things, that the defendant enter a guilty plea
that is ‘voluntary’ and that the defendant must make related
waivers
‘knowing[ly],
intelligent[ly],
[and]
with
sufficient
awareness of the relevant circumstances and likely consequences.”13
Ordinarily, a waiver is entered knowingly, intelligently, and with
sufficient awareness, when “the defendant fully understands the
nature of the right and how it would likely apply in general in the
circumstances–-even though the defendant may not know the specific
detailed consequences of invoking it.”14 With “respect to a defendant’s awareness of relevant circumstances, [the Constitution] does
not require complete knowledge of the relevant circumstances, but
permits a court to accept a guilty plea, with its accompanying
waiver of various constitutional rights, despite various forms of
misapprehension
under
which
a
defendant
might
labor.”15
“[A]
defendant need only understand the direct consequences of the plea;
13
United States v. Ruiz, 536 U.S. 622, 629 (quoting Brady v. United States,
397 U.S. 742, 748 (1970)).
14
Id. at 630.
15
Id.
6
he need not be made aware [of] every consequence that, absent a
plea of guilty, would not otherwise occur.”16
A guilty plea may be invalid if induced by a defense counsel’s
unkept promises.17
Ordinarily, however, “a defendant will not be
heard to refute his testimony given under oath when pleading
guilty.”18 A prisoner bears a heavy burden to convince a habeas
court that his guilty plea was involuntary after testifying to its
voluntariness in court.19 “Solemn declarations in open court carry
a strong presumption of verity,” and the “representations of the
defendant, his lawyer, and the prosecutor at a [plea] hearing, as
well
as
any
constitute
findings
a
proceedings.”20
made
formidable
by
the
barrier
in
judge
any
accepting
subsequent
the
plea,
collateral
Any documents signed by the defendant at the time
of the guilty plea are entitled to “great evidentiary weight.”21
Velasquez’s claim that his plea of guilty to a charge of
conspiracy
to
possess
a
controlled
substance
with
intent
to
distribute was not knowing and voluntary is directly refuted by his
testimony and a review of the factual resume.
16
Both Velasquez and
United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000).
17
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)(citing
Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir. 1989)).
18
United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)(quoting
United States v. Sanderson, 595 F.2d 1021, 1022 (5th Cir. 1979)).
19
DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir.), cert. den’d, 513 U.S. 968
(1994).
20
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also United States
v. Palmer, 45 F.3d 484, 491 (5th cir. 2006) [SECOND PART NEW CITE - SEE IF ADDS
ANYTHING].
21
See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994).
7
his counsel signed the factual resume. (FR at 5.) That document
included his plea to the sole charge as recited above, “conspiracy
to possess a controlled substance with intent to distribute”. (FR
at 1.) That document included the listing of the essential elements
of the offense to include:
1. That on or about the date and location alleged in the
indictment;
2. That two or more persons, directly or indirectly,
reached an agreement which included possessing cocaine
and then distributing such cocaine;
3. That the defendant knew of the unlawful purpose of the
agreement;
4. That the defendant joined in the agreement willfully,
that is, with the intent to further its unlawful purpose;
and
5. That the overall scope of the conspiracy involved at
least 5 kilograms of a mixture and substance containing
a detectable amount of cocaine, a Schedule II controlled
substance. (FR at 1-2)(emphasis added).
Moreover,
the
factual
resume
also
included
a
detailed
“Stipulation of Facts” which included information regarding a plan
and
discussion
by
Velasquez
and
his
co-defendants
with
an
undercover special agent to conduct an armed robbery of a cocaine
stash house, steal a quantity of cocaine, and then have each of the
participants in the proposed robbery receive an equal share of the
cocaine. (FR at Stipulation of Facts, ¶¶ 1-6.) Velasquez admitted
in the stipulation that he was present at a planning meeting on
March 23, 2010, with Montoya-Amaya, Pena, and Molina and two agents
acting in undercover capacities, when they discussed “the home
invasion robbery plot of the alleged cocaine stash house . . . and
that each of the participants would receive their equal share of
the cocaine after the crew conducted the armed home invasion.” (FR
8
at Stipulation, ¶ 5.) Velasquez also admitted to the resume noting
that when it was mentioned that the stash house is protected by
armed guards, “Velasquez smiled and shrugged his shoulders at the
possibility of a violent encounter with armed guards [and] stated
that he would have a firearm in hand as they made their entry into
the residence.” (FR at Stipulation, ¶ 6.) The resume also recounted
Velasquez’s presence with the others on the day of the planned
robbery, March 25, 2010, and Velasquez’s assurance to one of the
undercover agents that “the suspects had an AK-47 rifle inside the
back of the silver Tahoe.” (FR at Stipulation, ¶ 9.)
Velasquez
admitted that at the time of arrest he “ran from law enforcement
and was observed throwing a Taurus .38 caliber revolver, loaded
with six rounds of ammunition, onto the ground as he attempted to
escape.” (FR at Stipulation, ¶ 10.)
At the rearraignment hearing, Velasquez acknowledged to the
Court that he understood the factual resume, that the facts stated
therein were true and correct, and that the signature on page 5 of
the resume was his. (June 2, 2010 Rearraignment Transcript at 3740.) He admitted to the Court that he committed each of the
essential elements of the conspiracy to possess a controlled
substance offense to which he pleaded guilty. (June 2, 2012 Tr. at
24-26.)
He
testified
that
he
entered
the
plea
of
guilty
voluntarily, of his own free will, and without any other promises
or
assurances.
(June
2,
2012
Tr.
at
29-30.)
Velasquez
also
testified that he had discussed the case and the charges with his
attorney, and “[was] fully satisfied with the representation and
advice [he] received from [his] attorney in this case.” (June 2,
9
2010 Tr. at 26.)
Velasquez acknowledged that if his guilty plea
were accepted by the Court, he “would be adjudged guilty of the
offense charged against [him] in the indictment (the charge of
conspiracy
to
possess
a
controlled
substance
distribute).” (June 2, 2010 tr. at 30.)
with
intent
to
He also acknowledged that
if his sentence were more severe than expected he would still be
bound by his plea of guilty and would not have the right to
withdraw it. (June 2, 2010 Tr. at 34-35.)
The Court accepted
Velasquez’s guilty plea and determined that it was a “knowing and
voluntary plea supported by an independent basis in fact containing
each of the essential elements of the offense charged by the
[indictment].” (June 2, 2010 Tr. at 40.)
After review of this record, Velasquez fails to show why the
Court should not afford “great evidentiary weight” to the factual
resume he agreed to.
Nor does he demonstrate why the Court should
not afford the “strong presumption of verity” to the prior sworn
testimony that he understood the charge of conspiracy to possess a
controlled
entered
substance,
his
guilty
understood
plea
the
knowingly
essential
and
elements,
voluntarily.
and
Although
Velasquez now denies that he knew he was conspiring to steal
cocaine and sell it, and alleges he conspired only to steal money,
such self-serving and after-the-fact revisions are insufficient to
overcome his prior representations to this Court and his admissions
in his factual resume. Thus, the Court concludes that Velasquez’s
first ground for relief--that his plea of guilty was not knowing
and voluntary because it was the result of ineffective assistance
of counsel--must be denied.
10
Ineffective Assistance–-Failing to Move to Suppress Post-Arrest
Statements
In
his
next
ground,
Velasquez
contends
counsel
“was
ineffective for failing to file a motion to suppress [his] alleged
post arrest statements . . . .” (Mot. at 4 § 12(b).) Velasquez now
denies he ever told the agents he knew the object of the home
invasion conspiracy was to steal drugs and sell them. (Memorandum
at 16.)
In this regard, Velasquez contends “[s]ince the beginning
of the case [he] advised his counsel that a motion to suppress was
necessary because he did not admit that he knew the conspiracy was
to steal drugs.” Id. He argues counsel should have moved to
suppress his “alleged statement made without the presence of
counsel.” Id.
In order to support a claim of ineffectiveness based upon
defense counsel’s failure to move to suppress evidence, a prisoner
must prove that his constitutional claim is meritorious, that the
decision not to move to suppress was unreasonable, and that he
suffered prejudice.22 “When the alleged failure of counsel occurs
prior to a guilty plea, the movant must show that a suppression
motion had merit, and that if the motion had been granted, he would
not have pled guilty and would have insisted on his right to stand
trial.”23 With regard to the review of custodial statements, any
statement made during a custodial interrogation is admissible if
22
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
23
United States v. Mackay, No. 3-9-7CR-0208T, No.3-04-CV-0413-D, 2007 WL
700895, at * 28 (N.D. Tex. March 6, 2007)(citing Hill v. Lockhart, 474 U.S. at
57-60)).
11
the government shows the defendant knowingly and voluntarily waived
his Miranda24 rights and agreed to answer questions.25
In his factual resume, Velasquez admitted that he was advised
of his Miranda rights and waived them. (FR at ¶ 13.) He also
acknowledged in the resume that after waiving his Miranda rights,
he admitted his involvement to commit an armed home invasion to
steal 20-30 kilograms of cocaine for future distribution. (FR at ¶
13.) The investigative material in the probation file includes a
copy of a report of the March 25, 2010 interview by ATF agents with
Velasquez. The presentence report provided to the Court summarized
that report as to Velasquez’s post-arrest statement:
Velasquez consented to a post-arrest interview with ATF
agents. During the interview with ATF, the defendant
admitted attending the meeting on March 23, 2010, with
the two undercover agents, Montoya-Amaya, Molina, and
Pena. Velasquez understood the plan to steal drugs and
that each member would be paid. The defendant understood
there would be 30 kilograms of cocaine that would be
divided up among them. (Presentence Report (PSR) ¶ 60.)
Velasquez’s belated claim that he did not make such admissions
cannot now be a basis to claim counsel should have moved to
suppress. Velasquez does not challenge the voluntariness of his
post-arrest statement or that he waived the right to have counsel
present at the custodial interview. He has not alleged any arguable
reason any motion to suppress would have been meritorious. Rather,
the records revels that such a challenge would have been frivolous.
As Velasquez himself admitted that he had been advised of his
24
Miranda v. Arizona, 384 U.S. 436 (1966).
25
United States v. Cardenas, 410 F.3d 287, 292-93 (5th Cir. 2005).
12
Miranda rights, waived them, and then talked to agents about his
involvement in the conspiracy, and as the record confirms this
occurred, any motion by counsel to suppress such statement would
have been meritless.26 Velasquez has not shown counsel was deficient
with regard to this ground for relief, and such ground is denied.
For all of the above reasons, Velasquez’s
motion for relief
under 28 U.S.C. § 2255 (docket no. 1) is DENIED.
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal
may not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253.27 Rule 11 of the Rules Governing
Section 2255 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order
adverse
to
the
applicant.”28
The
COA
may
issue
“only
if
the
applicant has made a substantial showing of the denial of a
constitutional right.”29 A petitioner satisfies this standard by
showing “that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists of
26
See generally Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994)(“Failure
to raise meritless objections is not ineffective lawyering; it is the very
opposite.”).
27
See Fed. R. App. P. 22(b).
28
RULES GOVERNING SECTION 2255 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE
11(a) (December 1, 2009).
29
28 U.S.C.A. § 2253(c)(2)(West 2006).
13
reason could conclude the issues presented are adequate to deserve
encouragement to proceed further.”30
Upon review and consideration of the record in the abovereferenced case as to whether § 2255 movant Velasquez has made a
showing
that
reasonable
jurists
would
question
this
Court’s
rulings, the Court determines he has not and that a certificate of
appealability should not issue for the reasons stated in this
order.31
Therefore, a certificate of appealability should not issue.
SIGNED November 8, 2012.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
30
Miller-El v. Cockrell, 537 U.S. 322, 326 (2003)(citing Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
31
See Fed. R. App. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).
14
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