Mendez v. USA

Filing 8

Memorandum Opinion and Order denying 1 MOTION to Vacate under 28 U.S.C. 2255: The court ORDERS that the motion of Arnulfo Mendez to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. Pursuant to Ru le 22(b) of the Federal Rules of Appellate Procedure, Rule ll(a) of the Rules Governing Section 2255 Proceedings for the united States District Courts, and 28 U.S.C. § 2253(c) (2), for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (See order for specifics.) (Ordered by Judge John McBryde on 7/25/2013) (mdf)

u.s. DISTRICT
NORTHERN DISTRICIJC,\S
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEX
FORT WORTH DIVISION

UNITED STATES OF AMERICA

I

FILED

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,JUL 25 2013

§

Deputy

§

vs.

NO. 4:13-CV-320-A
(NO. 4:11-CR-65-A-3)

§
§

ARNULFO MENDEZ

§
§

MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Arnulfo Mendez
("movant") pursuant to 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 the motion lacks merit and should be denied.
1.

Background
Movant pleaded guilty to conspiracy to distribute 500 or
more grams of cocaine, in violation of 21 U.S.C.
841 (b) (1) (B), and 846.

§§

841(a) (1),

Movant had agreed to allow two drug

traffickers to store approximately eight kilograms of cocaine,
which movant guarded, and accompanying drug paraphernalia, in his
house, in exchange for $1,600.00.

He was sentenced to 120 months

imprisonment, in the middle of the guideline range, and a fiveyear term of supervised release.

His conviction and sentence

were affirmed, united States v. Mendez, 479 F. App'x 626
Cir. 2012), and he did not seek certiorari review.
filed his motion under

§

(5th

Movant timely

2255 on April 18, 2013.
II.

Ground of the Motion
Movant identified one ground for relief in his motion: that
he was denied effective assistance of counsel because his
attorney advised him to plead guilty to "an offense he was not
guilty of," and that movant was actually guilty of a different
offense that carried a lesser penalty.

Mot. at 5.

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
(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992).

A defendant

can challenge her 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 her procedural default

2

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)
517-18
B.

Moore v. united States, 598 F.2d 439, 441

(citing Buckelew v. United States, 575 F.2d 515,

(5th Cir. 1978)).

Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim,

movant must show (1) that counsel's performance fell below an
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for 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
3

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.
Movant argues that his attorney were deficient because he
advised movant to plead guilty to the conspiracy charge, even
though movant informed his attorney that he was not part of the
conspiracy because he had never handled, sold, or procured the
drugs that he allowed to be stored in his house.

Instead, movant

argues that he was guilty only of violating 21 U.S.C.

§

856(a) (2), which involves making a premises available to store a
controlled substance.

Movant contends that, but for counsel's
4

erroneous advice/ movant "would have refused to plead guilty to
the

§

846 charge and would have insisted upon going to trial/ or

as an alternative/
a violation of
Guidelines]

§

§

[movant] would have offered to plead guilty to

856 with the [United States Sentencing

2D1.8(a) (2) application."

Memo. at 9.

It is not up to movant's attorney/ or movant/ to decide what
charges will be brought against movant or on what charges movant
may choose to plead guilty.

As the government points out/

"In

our system/ so long as the prosecutor has probable cause to
believe that the accused committed an offense defined by statute/
the decision whether or not to prosecute/ and what charge to file
or bring before a grand jury/ generally rests entirely in his
discretion."

Bordenkircher v. Hayes/ 434 U.S. 357/ 364 (1977).

See also Ball v. united States/ 470 U.S. 856/ 859 (1985)

("This

Court has long acknowledged the Government's broad discretion to
conduct criminal prosecutions/ including its power to select the
charges to be brought in a particular case.")
Batchelder/ 442 U.S. 114/ 123-24 (1979)

i

united States v.

("This Court has long

recognized that when an act violates more than one criminal
statute/ the Government may prosecute under either so long as it
does not discriminate against any class of defendants.").
The record and evidence in movant's criminal case showed
that movant conspired with others to distribute cocaine by
5

allowing the traffickers to store cocaine and related
paraphernalia at his home, guarding the cocaine and paraphernalia
will full knowledge that it was illegal, and allowing the
distribution of the cocaine from his home.

Even if the

government could have prosecuted movant for providing the use of
his home for drug distribution in violation of

§

856, the

decision as to which criminal charges to bring rests exclusively
with the prosecutor, as noted above.

The only exception that

exists to this prosecutorial authority is when a prosecutor
possesses an improper motive in bringing the charges; there is no
evidence of any improper motive in this case.

Movant's attorney

had no authority or discretion to determine which charges would
be brought, or to insist that the government prosecute movant
under

§

856 rather than

§

846, and was not deficient for advising

movant to plead guilty to the

§

846 charges.

Any attempt to

demand that the government prosecute movant under another statute
by movant's attorney would have been meritless, and counsel is
not prejudicially deficient for failing to raise a meritless
issue.

See Clark v. Collins, 19 F.3d 959, 966

(5th Cir. 1994).

Additionally, movant cannot show that he was prejudiced.
Had he been charged under

§

856, the court would be directed by

United states sentencing Guidelines ("USSG")

§§

1B1.5(b) (1) and

2D1.8(a) (1) to calculate movant's offense level using
6

§

2D1.1,

which is the same provision used to calculate movant's offense
under

§

846.

Movant contends that USSG

§

2Dl.8(a) (2), which

provides a four-level decrease in the total offense level and
caps the level at 26, would apply to him; however, this provision
is inapplicable to "a defendant who guarded the cache of
controlled substances," which is exactly what movant did.
2Dl.8 cmt. n.l.

USSG

§

Thus, it is likely, if not certain, that

movant's guideline calculation would have remained the same and
that he would have received the same sentence for his criminal
conduct.

Thus, he cannot show a reasonable probability that the

outcome of the proceedings would have been different, and cannot
establish prejudice.
IV.
Order
Therefore,
The court ORDERS that the motion of Arnulfo Mendez to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.

§

2255 be, and is hereby, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the united States District Courts, and 28 U.S.C.
§ 2253(c) (2),

for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
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denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED July 24, 2013.

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