Reyna-Mares v. USA
Filing
13
Memorandum Opinion and Order: The court ORDERS that all relief sought by movant in his August 21, 2014 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. Pursuant to Rule 22{b) of the Federal Rules of Appellate Procedure, Rule 11{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. (Ordered by Judge John McBryde on 10/14/2014) (mem)
U.S.
DlSTr~,cr COURT
IN THE UNITED STATES DISTR Ct~T~OOWJtNDISTRICTOFTEXAS
NORTHERN DISTRICT OF T XAS
FILED
FORT WORTH DIVISIO
ANDRES REYNA-MARES, JR.
§
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Movant,
CLERK, U.S. DISTRICT COURT
Depury
By
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vs.
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UNITED STATES OF AMERICA,
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NO. 4:14-CV-689-A
(NO. 4:11-CR-149-A)
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Respondent.
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MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion filed by Andres Reyna-Mares, Jr.
2014, under 28
u.s.c.
§
("movant") on August 21,
2255 to vacate, set aside, or correct
sentence by a person in federal custody.
After having considered
such motion, its supporting memorandum, the supplement thereto,
the response of United States of America, the record in Case No.
4:11-CR-149-A, and pertinent legal authorities, the court has
concluded that such motion lacks merit and all relief sought
thereby should be denied.
I.
Pertinent Background
On October 12, 2011, a one-count indictment was filed in
Case No. 4:11-CR-149-A charging movant with illegal reentry after
deportation.
At that time movant was being represented by the
Office of the Federal Public Defender for the Northern District
of Texas ("Public Defender").
Danny D. Burns ("Burns") was
appointed to replace the Public Defender as movant's counsel on
November 18, 2011, because of a conflict of interest the Public
Defender had developed by reason of cooperation movant had
provided, or tendered to provide, to the government against
another client of the Public Defender.
Movant pleaded guilty to
the offense charged by the indictment on December 8, 2011,
without the benefit of a plea agreement.
He was sentenced on
April 6, 2012, to a term of imprisonment of fifty-seven months, a
term of supervised release of three years to commence upon
movant's release from prison, and an obligation to pay a special
assessment of $100.00.
Movant filed a notice of appeal to the United States Court
of Appeals for the Fifth Circuit.
attorney on appeal.
Burns continued to be movant's
Burns 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).
After having reviewed the
brief and relevant portions of the record, as well as movant's
response, the Fifth Circuit concurred with Burns's assessment
that movant's appeal presented no non-frivolous issue with
appellate review.
The appeal was dismissed.
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Movant filed his
Under 28 USC
§
§
2255 motion, on a form titled "Petition
2255 to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody," on August 21, 2014.
accompanied by a supporting memorandum.
It was
The grounds raised by
the motion are stated on the index page of the memorandum as
follows:
GROUND ONE
COUNSEL RENDERED INEFFECTIVE IN FAILING TO OBJECT TO
THE COURT FAILURE TO STATE SUFFICIENT REASONS FOR
SENTENCING PETITIONER AT THE VERY TOP OF THE SENTENCING
GUIDELINE RANG WITH NOT EXPLANATION.
GROUND TWO
WHRE COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO
THE COURT TO REQUEST DOWNWARD DEPARTURE FOR THE
ASSISTANCE WITH THE GOVERNMENT
Mem. at i.
{errors in original).
II.
Analysis
A.
Applicable Standards
1.
Pertinent
§
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.
Principles Applicable to Ineffective Assistance of
Counsel Grounds
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.
Neither of Movant's Grounds Has Merit
1.
The Lack of Merit of Ground One
The record of movant's criminal trial discloses that his
counsel, Burns, aggressively sought a sentence for movant below
the bottom of the advisory guideline range.
He filed a motion on
behalf of movant seeking a sentence below the bottom of the
advisory guideline range based on cooperation movant had provided
to the government.
Case No. 4:11-CR-149-A, Doc. 34.
was considered and rejected at the sentencing hearing.
That motion
The
record of the sentencing hearing discloses that the court took
all pertinent factors into account in determining that movant
should receive a term of imprisonment of fifty-seven months,
which was at the top of his advisory guideline range.
46 at 19-22.
Id., Doc.
If Burns had objected on the ground that the court
failed to state sufficient reasons for sentencing movant at the
top of the advisory guideline range without explanation, such an
objection would have been without merit.
Burns cannot be found
to have been ineffective by reason of a failure to make a
meritless objection.
See United States v. Kimler, 167 F.3d
893 (5th Cir. 1999).
Therefore, movant's Ground One is without
merit.
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8891
2.
The Lack of Merit of Ground Two
Even though movant had no right to move for a sentence below
the bottom of the guideline range based on substantial assistance
to the government in the investigation and prosecution of the
criminal conduct of another person, Burns nevertheless sought on
behalf of movant for a sentence below the bottom of the guideline
range based on assistance movant provided to the government.
The
government responded to the motion for downward departure filed
by Burns on behalf of movant that the government did not consider
that movant's cooperation was helpful to the government.
No. 4:11-CR-149-A, Doc. 35 at 1-2.
Case
The government opposed the
request Burns made on behalf of movant that there be a downward
departure based on movant's assistance.
No reasonable attorney
could have done more than Burns did to gain a benefit for movant
for whatever assistance he provided to the government.
Therefore, movant's Ground Two lacks merit.
III.
Order
For the reasons given above,
The court ORDERS that all relief sought by movant in his
August 21, 2014 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.
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Pursuant to Rule 22{b) of the Federal Rules of Appellate
Procedure, Rule 11{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.
SIGNED October 14, 2014.
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