Gomez v. USA

Filing 13

Memorandum Opinion and Order denying 1 MOTION to Vacate under 28 U.S.C. 2255: The court ORDERS that movant's § 2255 motion 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 4/8/2015) (mdf)

IN
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

S

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CLERK, U.S. DISTRICT COURT

By

TONY DUQUE GOMEZ,

Deput?

§
§

Movant,

§
§

VS.

§
§

UNITED STATES OF AMERICA,

§

NO. 4:15-CV-024-A
(NO. 4:12-CR-188-A)

§

Respondent.

§

MEMORANDUM OPINION
and
ORDER
Came on for decision the motion of Tony Duque Gomez
("movant") 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, movant's reply, pertinent parts of the
record in Case No. 4:12-CR-188-A, styled "United States of
America v. Jessica Christine Bagley, et al.," and pertinent legal
authorities, the court has concluded that such motion should be
denied.
1.

Background
On November 9, 2012, movant pleaded guilty to the offense of
possessing and uttering a forged and counterfeit security of a

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private entity, in violation of 18 U.S.C.

§

513(a).

On March 8,

2013, the court sentenced movant to a term of imprisonment of 120
months to run consecutively to the sentence imposed in Case No.
1292302 or that might be imposed in any other state case that was
based on conduct that had already occurred, and to be followed by
a three-year term of supervised release.

Defendant was also

ordered to make restitution in the amount of $7,917.56.
filed his notice of appeal on March 22, 2013.

Movant

The united States

Court of Appeals for the Fifth Circuit issued its judgment as a
mandate on February 18, 2014, dismissing the appeal as frivolous.
A petition for writ of certiorari was not filed.
II.

Grounds of the Motion
Movant identified one ground for relief in his motion:
"Counsel was ineffective for inducing plea through unfulfilled
promises."

Doc. 1 at 4. 1

As the supporting facts for that

ground, movant refers to pages 1-5 of a memorandum attached to
his motion.

Id.

In his memorandum, movant more specifically

IThe "Doc.
references are to the numbers assigned to the items on the docket in this Case
No.4: 15-CV-024-A. The "Case No.4: 12-CR-188-A Doc.
" references are to the number assigned to
the items on the docket in Case No. 4: 12-CR-188-A, Gomez's criminal case.
_It

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defines the nature of his ineffective assistance of counsel claim
as follows:
Counsel was ineffective for making promises to
induce petitioner to plead guilty where counsel
promised petitioner that by pleading guilty he would
receive a three level reduction for acceptance of
responsibility and eliminate the possibility of the
statutory maximum sentence.
Id., Att. at 1.
Movant complained in his memorandum that his trial counsel
induced him into pleading guilty through "unfulfilled promises."
Specifically, movant stated that trial counsel assured him that,
if he pleaded guilty, he would receive a three-level reduction
for acceptance of responsibility, which would prevent him from
being sentenced to the statutory maximum.

However, movant was

sentenced to the statutory maximum.
While beyond the scope of the description of his ground for
relief, movant seems to be complaining in his memorandum that his
attorney failed to cooperate with him in requesting the court to
allow him to withdraw his plea of guilty.

The court will treat

that as a second ground for relief urged by movant.
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
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fairly and finally convicted.

united states v. Frady, 456 U.S.

152, 164-165 (1982) i United States v. Shaid, 937 F.2d 228, 231-32
(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).
B.

Legal Standard for Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim,

movant must show that (1) counsel's performance fell below an
objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different.
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Strickland v. Washington, 466 U.S. 668, 687
Missouri v. Frye, 132 S. Ct. 1399 (2012)

(1984)

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see also

(noting that "claims of

ineffective assistance of counsel in the plea bargain context are
governed by the two-part test set forth in Strickland).

Both

prongs of the Strickland test must be met to demonstrate
ineffective assistance.

rd. 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."

United States v. Stewart, 207 F.3d 750, 751 (5th Cir.

2000).

"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."

Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)

(quoting Strickland, 466 U.8. at 686).

Judicial scrutiny of this

type of claim must be highly deferential, and movant 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.
C.

Analysis
Movant seems to be contending that he did not receive the

benefit of a three-level acceptance-of-responsibility reduction
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in the calculation of his total offense level.

The presentence

report shows that he did receive such a reduction.
4:12-CR-188-A, Doc. 57-1 at 13,

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54-55.

Case No.

The presentence report

showed that movant's advisory guideline imprisonment range was 51
months to 63 months based on the probation officer's total
offense level calculation (which was reduced by three levels for
acceptance of responsibility) and defendant's criminal history
category of VI.

Id. at 24,

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104.

The court accepted those

calculations at the sentencing hearing.

Id., Doc. 124 at 6.

The magnitude of movant's sentence was not due to a failure
of movant to receive a three-level reduction in his offense level
based on acceptance of responsibility.

Instead, it was due to

the court's consideration of the sentencing factors contemplated
by 18 U.S.C.

§

3553(a}.

Id. at 9-13.

The sentence of

imprisonment of 120 months was a variance above the top of the
advisory guideline range; and, the court noted at the sentencing
hearing that the sentence imposed would have been an authorized
upward departure under the sentencing Guidelines.

Id. at 12-13.

To whatever extent movant generally is complaining that his
attorney did not advise him sufficiently of the potential that he
would have received a sentence of imprisonment as long as he did
receive, movant has not provided any evidence that would support

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a finding that the length of movant's sentence resulted from any
inappropriate conduct on the part of his attorney.
Moreover, the record establishes that when defendant entered
his plea of guilty he knew exactly what he was faced with.

He

testified under oath during his rearraignment hearing, when he
pleaded guilty, that no one had made any promises or assurances
to induce his guilty plea, Case No. 4:12-CR-188-A, Doc. 122 at
20-21, and that he understood that even if he received a sentence
harsher than expected, he was still bound by his plea of guilty,
id. at 21.

Furthermore, this court cautioned movant that, by

pleading guilty, he was sUbjecting himself to the possibility of
being sentenced to the statutory maximum of ten years.
13.

Movant stated he understood.

Id. at

Id. at 14.

"Solemn declarations in open court carry a strong
presumption of verity, forming a formidable barrier in any
subsequent collateral proceedings."
132 F.3d 1106, 1110 (5th Cir. 1998)
quotations omitted).

united States v. Cervantes,
(citation and internal

In order for a defendant to seek habeas

relief on the basis of alleged promises, when defendant has
previously stated under oath that he relied on no such promises,
defendant must prove "(1) the exact terms of the alleged promise,
(2) exactly when, where, and by whom the promise was made, and
(3) the precise identity of an eyewitness to the promise."
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Id.

Where "the defendant's showing is inconsistent with the bulk of
[his] conduct or otherwise fails to meet [his] burden of proof in
the light of other evidence in the record, an evidentiary hearing
is unnecessary."

Id.

In this instance, movant's only evidence

of the alleged promises is his own affidavit.

He has provided no

testimony of a third-party eyewitness, and his testimony is
contradicted by his counsel's affidavit.

Therefore, movant has

not brought forward sufficient evidence to undermine his sworn
statements discussed above.
To whatever extent movant might be asserting as a ground for
relief that his attorney did not cooperate with him in seeking a
withdrawal of his plea of guilty, the record does not provide any
support for such a ground.

Moreover, there is nothing in the

record that would support a finding that movant would have been
permitted to withdraw his plea of guilty if he had attempted to
do so.

Therefore, even if the first prong of the ineffective

assistance of counsel standard had been met as to that subject,
there would be no basis for a finding that movant suffered any
prejudice by having failed to request that he be permitted to
withdraw his plea of guilty.
For the reasons stated above, movant's motion is to be
denied.

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IV.
Order
Therefore,
The court ORDERS that movant's § 2255 motion 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.
SIGNED April 8, 2015.

Judge

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