Vargas v. USA

Filing 8

Memorandum Opinion and Order: The court 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...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 4/13/2015) (mem)

ti

NORTHER;\j DlSTH!CT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

APR 13 2015

J

CLERK, U.S. DISTRICT COURT
. . BY----.,..-----

ANICETO BELTRAN VARGAS,

§
§
§
§
§

Movant,

vs.

§
§
§

UNITED STATES OF AMERICA,
Respondent.

Drpury

NO. 4:15-CV-140-A
(NO. 4:12-CR-198-A)

§

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion filed by movant, Aniceto Beltran Vargas, to vacate, set
aside, or correct sentence by a person in federal custody.

After

having considered such motion, the government's response thereto,
pertinent parts of the record in Criminal Case No. 4:12-CR-198-A,
and relevant legal authorities, the court has concluded that such
motion should be denied.
I.

Background
On November 16, 2012, movant pleaded guilty to the offense
of possession of a controlled substance with intent to
distribute, in violation of 21

u.s.c.

§§

841(a) (1)

&

(b) (1) (B).

He was sentenced on March 1, 2013, to a term of imprisonment of

168 months, to be followed by a term of supervised release of
four years.
Movant appealed his sentence to the United States Court of
Appeals for the Fifth Circuit, which affirmed by an opinion
issued December 17, 2013.

Movant did not seek a writ of

certiorari by the Supreme Court.
on February 20, 2015.

Movant filed his

§

2255 motion

The government responded on March 23,

2015.
II.
The Grounds of Movant's

§

2255 Motion

The motion seems to indicate that movant is asserting three
ineffective-assistance-of-counsel grounds.
Ground One:

~Ineffective

He specified as his

Assistance of Counsel."

Doc. 1 at 4. 1

In the form of motion movant used, he put alongside the place for
~[s]ee

a description of his Ground Two,

Movant's Memorandum of

Points and Authorities," id. at 5; and he put alongside the place
for a description of Ground Three,
Points and Authorities," id. at 8.

~[p]lease

see Memorandum of

However movant explained his

failures to raise his Grounds Two and Three in his direct appeal
by stating that each ground was an

1

~ineffective

assistance of

The "Doc._" references are to the docket numbers assigned by the clerk to the referenced
items in this Case No. 4:15-CV-140-A. The "Case No. 4:12-CR-198-A, Doc._" references are to the
docket numbers assigned by the clerk to the referenced items in Case No. 4:12-CR-198-A.
2

counsel" ground.

Id. at 5-8.

Movant did not give the factual

bases for any of his grounds, stating, instead,

"[p]lease see

Movant's Memorandum of Points and Authorities" or "[s]ee
Memorandum of Points and Authorities." 2

Id. at 4-5, 7.

The contents of movant's supporting memorandum do little to
explain the exact nature of movant's ineffective of counsel
grounds.

Giving movant the benefit of a certain amount of

creative reading of his memorandum, the court is proceeding on
the assumption that movant is complaining that:
(1}

The court engaged in prohibited participation in plea

discussion, Doc. 2 at 5-6;
(2}

The court did not satisfy itself that there was factual

bases for movant's plea of guilty, id. at 7-9;
(3}

Movant was not made aware of the consequences of

pleading guilty before he did so, id. at 7;

2

While movant verified his motion, Doc. 1 at 12, his verification was meaningless as to the
factual bases of his motion because he did not state in the motion any of the facts upon which he relied.
Thus, the motion itself did not comply with the letter or spirit of Rule 2(b)(5) of the Rules Governing
Section 2255 Cases in the United States District Courts, which requires that a motion for relief under
§ 2255 "must ... specify the facts supporting each ground ... and ... be signed under penalty of perjury
by the movant or by a person authorized to sign it for the movant." All of the facts upon which movant
purports to rely in support of his motion are set forth in his supporting memorandum, which, while being
mentioned in the motion, was not incorporated by reference in the motion. The supporting memorandum
is not verified by an affidavit or declaration. Therefore, the purported facts upon which movant relies in
support of his motion are not in a form that would authorize the court to give them evidentiary effect in
ruling on the motion. However, because the record of movant's criminal case makes so clear that movant
is not entitled to § 2255 relief, the court is not ordering movant to file an amended motion or a properly
verified amended memorandum.

3

(4)

Movant was not made aware of the quantity of

methamphetamine that would be taken into account in determining
his sentence at the time he entered his plea of guilty, id. at 9;
(5)

His plea of guilty was not knowingly and intelligently

made, id. at 10; and
(6)

Movant's counsel failed to properly advise him on one

or more of the subjects mentioned above about which he now
complains, id. at 10-11.
III.

Analysis
A.

Pertinent Legal Principles
1.

Principles Applicable to a 2255 Motion

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, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991).

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.

4

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).
2.

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
5

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
range of reasonable professional assistance.

Strickland, 466

U.S. at 689.
B.

The Grounds of the Motion Are Without Merit
1.

The Court Did Not Participate in Plea Discussions

The basis for plaintiff's assertion that the court engaged
in prohibited participation in plea discussion is described in
movant's memorandum as follows:
The Court then impermissibly engaged in a discussion
with the Movant and his counsel regarding the amount of
drugs to wish Movant's offense involve in and stated:
"Mr vargas, there is no way Mr. Hermesmeyer can tell
you how much drugs you will held accountable for.
From
what I've heard, you probavly will be held accountable
for over--more--at least 230 milligrams of
methamphetamine.
It may be more than that.
I don't
know that there's any way he can tell you, nor is there
any way I could tell you at this point in time."
[Case
No. 4:12-CR-198-A, Doc. 34] at 11-12. These statements
by the Court and the Movant during the November 16,

6

2012, plea hearing clearly shows that the Court engage in
prohibiting participation in plea discussion.
Case No. 4:12-CR-198-A, Doc. 2 at 5 (errors in original) . 3

The

record makes clear that the court was not involving itself in
plea negotiations or discussions, but was simply explaining to
movant why his attorney was not in a position to take steps to
limit his sentencing exposure to so grams of methamphetamine.
Case No. 4:12-CR-198-A, Doc. 34 at 10-13.

Nothing in the record

of movant's criminal action remotely suggests that this court
involved itself in plea discussions.
2.

There Was Factual Basis for Movant's Plea of Guilty,
and the Court Satisfied Itself That There Was Before
the Plea Was Taken

Movant never contended that he was not guilty of the offense
charged by the indictment in this case.

Rather, from the outset

of his rearraignment hearing, movant made clear that he did not
want to go to trial because he was guilty of the offense charged
by the indictment, and he acknowledged from the outset that he
understood that a plea of guilty would subject him to a term of
imprisonment of between five and forty years.

Case No. 4:12-CR-

198-A, Doc. 34 at 6-7.

3

The record reflects that the court misspoke when it used the word "milligrams," and that almost
immediately afterwards the court corrected the "milligrams" to "grams." Case No. 4:12-CR-198-A, Doc.
34 at 11-12.
7

During the hearing the court explained to movant the
elements of the offense charged by the indictment, and defendant
said that he understood that those were the things the government
would have to prove to a jury beyond a reasonable doubt to cause
him to be convicted if he were to persist in his plea of not
guilty.

Id. at 27-28.

existed in his case.

Movant admitted that all of those facts
Id. at 28.

Later, the court, after having

the stipulated facts in the factual resume read aloud, inquired
of defendant if those facts were true, to which the defendant
answered "Yes."

Id. at 31-32.

Once the court determined that defendant's plea of guilty
had a factual basis, the court found that his plea of guilty was
"supported by an independent basis in fact containing each of the
essential elements of [the offense to which defendant pleaded
guilty]."

Id. at 32.

That finding was fully supported by the

record.
3.

Defendant Was Aware of the Consequences of Pleading
Guilty Before He Did So

As noted above, defendant recognized at the outset of his
rearraignment hearing that he was subjecting himself to a term of
imprisonment of forty years by a plea of guilty.

Id. at 7.

The

court explained to movant that there was no way at that time that
a determination could be made by movant's counsel, movant, or the

8

court as to the quantity of drugs that would be attributable to
movant for sentencing purposes.

Id. at 12-13.

Movant testified,

before he entered his plea of guilty, that by pleading guilty he
was subjecting himself to, inter alia, a term of imprisonment
that would have to be at least five years and could be as much as
forty years.

Id. at 28-29.

All of the statements made by movant, and all movant's
answers to the court's questions, at the rearraignment hearing
were made and given while movant was under oath.

Id. at 3.

"[A) defendant ordinarily will not be heard to refute [his]
testimony given at a plea hearing while under oath."

United

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

Id.

(omitting internal quotation marks) (citing,

and quoting from, Blackledge v. Allison, 431 U.S. 63, 73-74
(1977)) .
For a defendant who seeks habeas relief on the basis of
alleged promises inconsistent with representations he made in
open court when entering his plea of guilty to prevail, he 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 the eyewitness to the promise."
9

Id.

To be

entitled to an evidentiary hearing, the defendant must produce
"independent indicia of the likely merit of [his] allegations,
typically in the form of one or more affidavits from reliable
third parties.

Id.

"If, however, 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.

See also,

United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985).
Movant has failed to provide any evidence in support of any of
his contentions that are at variance with the statements he made,
or the answers he gave, while under oath at the rearraignment
hearing.
To whatever extent movant might be suggesting that his
attorney made any representation or promise to him as to the
level of imprisonment that might be imposed on him, the testimony
given by movant at his rearraignment hearing is direct proof that
no such thing occurred.

He was told that he should never depend

or rely upon any statement or promise by anyone as to what
penalty will be assessed against him, and he said that he
understood that explanation.

Id. at 19-20.

He pointedly said

that no one had made any promise or assurance to him of any kind
in an effort to induce him to enter a plea of guilty.

10

Id. at 30.

The court is satisfied and finds that movant was aware of
the consequences of pleading guilty before he did so.
4.

Movant Knew When He Pleaded Guilty That the Quantity of
Methamphetamine That Would Be Taken into Account Would
Be Determined by the Probation Officer

The discussion at the rearraignment hearing clearly conveyed
to movant that the exact quantity of methamphetamine that would
be taken into account in determining his sentence could not be
known at that time.

The court gave the following explanation to

movant:
Mr. Vargas, at this stage of the proceeding, the
Government doesn't have to show how much you're going
to be held accountable for.
That's determined by
information that is presented to the Court in advance
of the hearing for your sentence and at the time of the
hearing of your sentence.
The probation officer prepares a report, and in
that report, the probation officer will make known how
much, in the view of the probation officer, you should
be held accountable for.
Id. at 12-13.
knowledge.

Movant entered his plea of guilty with that

Thus, while he was not made aware of the exact

quantity that would be taken into account in determining his
sentence, he made the decision to plead guilty without having
that precise knowledge.

Presumably movant himself knew the

quantity of methamphetamine for which he should have been held
accountable for sentencing purposes, with the consequence that he
hardly is in a position to complain that the probation officer
11

------------

reported to the court, and the court found, a quantity that was
consistent with the actual facts.
5.

Movant's Plea of Guilty Was Knowingly and Intelligently
Made

The record of the rearraignment hearing could not make any
clearer that movant knew what he was doing when he entered his
plea of guilty and that he made the intelligent decision to do
so.

At the conclusion of the hearing, the court found that "his

plea of guilty to the offense charged by the indictment in this
case is a knowing and voluntary plea."

Id. at 32.

Movant has

failed to provide any evidence to the contrary.
6.

Movant Has Failed to Provide Any Evidence That His
Attorney Failed to Properly Advise Him on Any Subject
Pertinent to His Plea of Guilty

At the rearraignment hearing movant was given an opportunity
to express any reason he had for any dissatisfaction with his
attorney.

Id. at 7-13.

As well as the court could determine,

his dissatisfaction was that his attorney was not able to do
something to cause his sentence to be lower than it was going to
be based on his offense conduct.

Nothing movant said at that

time suggested that movant had any basis for complaining of his
attorney's conduct relative to any of the subjects mentioned in
the memorandum he filed in support of his motion, and he provides
no factual basis in his memorandum for any finding that his

12

attorney did not act with complete propriety at all times while
representing him.
IV.

Order
For the reasons stated above,
The court 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.

* * * * *
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 13, 2015.