Hernandez v. USA
Filing
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Memorandum Opinion and Order: The court ORDERS that movant's request for an evidentiary hearing be, and is hereby, denied. The court further ORDERS that all relief sought by movant in his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody be, and is hereby, denied. (Ordered by Judge John McBryde on 9/30/2014) (mem)
li.S. DISTR!CT COUU
-,
NORTHER.t\1 {}!STRICT OF TEX:\S
IN THE UNITED STATES DISTRICT COUR1f
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION
DANIEL HERNANDEZ,
vs.
§
§
UNITED STATES OF AMERICA,
§
§
SEP 3 0 2014
'
..__--~--··---·- J
CLE~ U.S. DISTRICT COL H ,
§
§
§
Movant,
FILED
. By _ _--::::----·
Deputy
NO. 4:14-CV-650-A
(No. 4:11-CR-173-A)
§
§
Respondent.
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of Daniel Hernandez, the defendant in the above-numbered
criminal action and the movant in the above-captioned civil
action, under 28
u.s.c.
§
2255 to vacate, set aside, or correct
sentence by a person in federal custody.
After having considered
such motion, its supporting memorandum, the government's
response, the record in Case No. 4:11-CR-173-A, and pertinent
legal authorities, the court has concluded that such motion
should be denied.
I.
Background
On January 13, 2012, movant pleaded guilty, without a plea
agreement, to the offense of possession with intent to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C.
§§
841(a) (1) and 841(b) (1) (B), charged by a one-count indictment.
I
'
He was represented at that point in time by his retained
attorney, James Lee Bright ("Bright").
He was sentenced on
May 4, 2012, to a term of imprisonment of 220 months, which was
within his guideline range of 210 to 262 months.
Bright was
permitted to withdraw as movant's attorney in mid-May 2012.
A timely notice of appeal was filed for movant, and he was
permitted to proceed in forma pauperis on appeal.
He was
represented on appeal by the Office of the Federal Public
Defender for the Northern District of Texas, acting through Jason
D. Hawkins, who was then an Assistant Federal Public Defender.
The Federal Public Defender filed a motion with the Fifth
Circuit to withdraw from representation of movant on appeal, and
filed a brief in accordance with Anders v. California, 386 U.S.
738
(1967), and United States v. Flores, 632 F.3d 229 (5th Cir.
2011) .
The Fifth Circuit concurred with the Federal Public
Defender's assessment that the appeal presented no non-frivolous
issue for appellate review.
Accordingly, the Federal Public
Defender's motion for leave to withdraw was granted, and movant's
appeal was dismissed in December 2013.
Movant filed his motion under
§
2255 on August 13, 2014, to
which the government responded on September 10, 2014.
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II.
The Grounds of the Motion
As set forth in the memorandum movant filed in support of
his motion, the grounds of his motion are as follows:
GROUND ONE:
Counsel Was Ineffective For Failing To
Properly Object To The Application Of
The Two-Level Enhancement For The
Importation Of Methamphetamine From
Mexico
Mot., Mem. at 9.
GROUND TWO:
Counsel Was Ineffective For Failing To
Properly Object To The Application Of
The Two Level Enhancement For
Obstruction Of Justice
Id. at 10.
GROUND THREE:
Counsel Was Ineffective For Failing To
Properly Object To The Pre-sentence
Investigation Report's Determination
That Movant Was Responsible For 20.4
kilograms Of Methamphetamine
Id. at 12.
III.
Analysis
A.
Standards
1.
Applicable
§
2255 Principles
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.
3
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
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)).
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2.
Standards Pertinent to Ineffective Assistance of
Counsel Claims
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 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 (2011)
U.S. at 686).
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
5
range of reasonable professional assistance.
Strickland, 466
U.S. at 689.
B.
None of the Grounds of the Motion Has Merit
1.
Ground One is Without Merit
The record in movant's criminal case, including facts
recited in the presentence investigation report, established that
the drugs for which movant was held accountable were brought in
from Mexico.
Movant's complaint is that Bright did not
appropriately object to the two-level increase based on the
importation of the drugs on the ground that movant did not know
that he was dealing with drugs imported from Mexico.
If his
counsel had made such an objection, it would be without merit.
See,
~~
2014).
United States v. Foulks, 747 F.3d 914, 915 (5th Cir.
Movant's counsel had no obligation to make an objection
unfounded in law, and cannot be determined to have been
ineffectual as movant's attorney for having failed to do so.
United States v. Kimler, 167 F.3d 889, 893
See
(5th Cir. 1999).
Therefore, movant's first ground lacks merit.
2.
Ground Two is Without Merit
Movant complains of an obstruction of justice two-level
increase in his offense level based on the fact that he fled to
Mexico as officers were trying to arrest him, and remained as a
fugitive in Mexico for several months before he was arrested
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crossing the border into the United States at the Laredo, Texas
point of entry.
Movant alleged in his memorandum "that he
traveled to Mexico to visit family, but did not do so strictly
after learning of a warrant for his arrest, and did not knowingly
flee to obstruct justice."
Mot., Mem. at 10.
His present
contention was directly contradicted by the information provided
to the court at sentencing.
The information the court had at
sentencing causes the court to conclude that it would have been
futile for Bright to have objected to the obstruction of justice
increase in movant's offense level on the ground suggested by
movant in his memorandum.
Instead, Bright made the wise
strategical choice to mitigate the enhancement by arguing that
the court should not place significant weight on movant's conduct
in fleeing to Mexico, arguing that the court should take into
account in sentencing that movant voluntarily returned to the
United States to face the indictment.
Bright's choice was within
the wide range of reasonable professional assistance.
Therefore,
movant's second ground is without merit.
3.
Ground Three is Without Merit
Movant's suggestion in support of his third ground is that
his agreement was to be held accountable only for the 964 grams
of methamphetamine that, as described in the factual resume, were
seized on December 8.
That contention flies in the face of
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numerous assurances and representations provided by movant under
oath at his rearraignment hearing.
Movant's current contentions
do not rebut the "strong presumption of verity" afforded to the
sworn statements he made at the rearraignment.
See United States
v. Palmer, 456 F.3d 484, 491 (5th Cir. 2006); United States v.
Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998); United States v.
Abreo, 30 F.3d 29, 32
(5th Cir. 1994).
As before, the record
establishes without dispute that any objection Bright might have
made on behalf of movant to the drug quantities that were used to
ascertain movant's guideline sentencing ranges would have been
legally invalid.
ground of movant's
C.
Therefore, the court concludes that the third
§
2255 motion is unmeritorious.
Movant's Request for an Evidentiary Hearing on His Motion
Should Be Denied
On page 14, in section VII, of movant's memorandum in
support of his motion, movant requested an evidentiary hearing.
The court is denying that request because movant has not adduced
any facts in his motion or supporting memorandum that would cause
the court to believe that an evidentiary hearing would be
appropriate.
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IV.
Order
For the reasons stated above,
The court ORDERS that movant's request for an evidentiary
hearing be, and is hereby, denied.
The court further ORDERS that all relief sought by movant in
his motion under 28 U.S.C.
§
2255 to vacate, set aside, or
correct sentence by a person in federal custody be, and is
hereby, denied.
SIGNED September 30, 2014.
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