Gamez v. USA
Filing
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Memorandum Opinion and Order... 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, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 5/8/2015) (wxc)
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,----u'S~ISTRiC:"i COURT
NORTIIERN D!STR!CTOFTEXAS
FILlED
IN THE UNITED STATES DISTRICT COURT\
NORTHERN DISTRICT OF TEX~
;
FORT WORTH DIVISION
I MAY - 8 2015
CHRISTOPHER GAMEZ,
VS.
UNITED STATES OF AMERICA,
Respondent.
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I
CLERK, U.S. DISTRICT COURT
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Movant,
1
BY----~~------
J>cputy
NO. 4:15-CV-198-A
(NO. 4:13-CR-035-A)
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion filed by movant, Christopher Gamez, under 28 U.S.C.
§
2255
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. 4:13-CR-035-A, and relevant legal authorities, the court has
concluded that such motion should be denied.
I.
Background
On May 10, 2013, movant pleaded guilty to the offense of
conspiracy to possess with intent to distribute a controlled
substance, in violation of 21 u.s.c.
& (b) (1) (B)).
§
846
(2 u.s.c.
§§
841(a) (1)
He was sentenced on August 28, 2013, to a term of
imprisonment of 360 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 dismissed his appeal as
frivolous by opinion and judgment issued December 16, 2014.
United States v. Gamez, 487 F. App'x 845 (5th Cir. 2014).
filed his
§
2255 motion on March 16, 2015.
He
The government
responded on April 6, 2015, to which movant replied on April 28,
2015.
II.
The Grounds of Movant's
§
2255 Motion
Movant alleged two grounds for relief in his motion which,
as stated in the motion, along with the supporting facts stated
in the motion, were as follows:
A.
Ground one:
Amendment
Ineffective Assistance of Counsel 6th
Supporting FACTS: Counsel gave petitioner
incorrect legal advice related to his sentencing
exposure during plea negotiations.
Petitioner
relied on that erroneous legal advice in deciding
to plead guilty.
(See Memorandum of Law attached
hereto)
B.
Ground two:
Amendment
Ineffective Assistance of Counsel 6th
Supporting FACTS: Counsel failed to file any
objections to sentencing enhancements that did not
apply, as instructed by petitioner.
(See
Memorandum of Law)
2
Doc. 1 at 4. 1
In his supporting memorandum, movant elaborated on his
Ground One by assertions that:
Mr[.] Gamez was denied his Sixth Amendment right
to effective assistance of counsel as a result of
counsel's failure to investigate assess the facts,
circumstances, and laws involved in petitioner's case
and then offer his informed opinion related to entering
a plea of guilty, along with the correct assessment of
his sentencing exposure.
Doc. 1, Mem. at 2.
In the argument in his memorandum in support
of the first ground, movant alleges that his attorney told him at
the outset that "he could secure a plea of about 10 years," id.
at 5, and that "his worst case scenario would be (15)
fifteen
years but that he was shooting for (10) ten years," id. at 6.
Also, movant complains that his attorney did not go over the
guidelines with him and did not explain possible enhancements
before movant entered his plea of guilty.
Id. at 6.
In his supporting memorandum, movant elaborated on his
Ground Two by claiming that his attorney failed to provide
effective assistance of counsel because of his failure to object
to aggravating role, dangerous weapon, and importation
enhancements in movant's offense level that were assigned to
1
The "Doc. _ " references are to the docket numbers assigned by the clerk to the referenced
"references are to the
items in this Case No.4: 15-CV-198-A. The "Case No.4: 13-CR-035-A, Doc.
docket numbers assigned by the clerk to the referenced items in Case No.4: 13-CR-035-A.
3
movant in his presentence report, and were taken into account by
the court at sentencing.
Id. at 13-15.
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.
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).
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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
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
5
range of reasonable professional assistance.
Strickland, 466
U.S. at 689.
B.
The Grounds of the Motion Are Without Merit
1.
Ground One
The only definitive facts stated by movant in his motion,
memorandum, or reply related to the general complaints he
expresses in his Ground One are that sometime before he entered
his plea of guilty his attorney indicated to him that his
cooperation with the government was such that he would receive a
sentence no worse than fifteen years.
He implies that such a
representation by his attorney is what caused him to plead
guilty.
Put another way, movant seems to be contending that his
plea of guilty was not made with knowledge of the potential
consequences of the plea.
The record does not bear out movant's
Ground One contention.
At his rearraignment hearing, movant swore under oath that
(1) he understood that his plea of guilty must not be induced or
prompted by any promises of any kind, and that he should plead
guilty only because he is guilty and for no other reason, Case
No. 4:13-CR-035-A, Doc. 225 at 13-14;
(2) he understood that by
pleading guilty he was subjecting himself to a term of
imprisonment that would have to be at least five years and could
be as much as forty years, id. at 23;
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(3) 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; and (4) he understood that if he
pleaded guilty and that if the plea were to be accepted by the
court, he would be adjudged guilty of the offense charged by the
superseding indictment and his punishment would be assessed
somewhere within the range of punishment provided by statute and
his sentence would be within the range provided by statute, id.
at 34-35.
He also testified that if he were to plead guilty and
then ended up receiving a sentence that was more severe than he
hoped it would be, he would still be bound by his plea of guilty
and would not have a right to withdraw it.
Id. at 35.
Based on
the sworn answers given by movant at the rearraignment hearing,
the court found that movant's plea of guilty was a knowing and
voluntary plea and that it did not result from force, threats, or
promises.
Id. at 36-37.
At the commencement of the rearraignment hearing, movant
said that he understood that he was under oath and that if he
answered any of the court's questions falsely, his answers could
later be used against him in a prosecution for perjury or making
a false statement.
Id. at 9.
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.
"[A) defendant ordinarily will not be heard to refute [his)
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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)).
Here, movant has produced no independent evidence to
challenge this court's finding that his plea of guilty was a
knowing and voluntary plea and that it did not result from
promises.
The record makes clear that movant pleaded guilty
because he knew that the government's case against him was
overwhelming; and, he knew or should have known that he was
unlikely to obtain any significant benefit from any cooperation
with the government inasmuch as he had extensively lied to the
law enforcement during some of his interviews.
035-A, Doc. 226 at 8.
Case No. 4:13-CR-
Movant did not express any concern or
surprise when or after he heard the court state on the record at
his sentencing hearing that his guideline imprisonment range
would be 360 months to life imprisonment were it not for the
statutory maximum of forty years for the offense contained in the
superseding indictment to which he pleaded guilty.
Id. at 4.
Instead, when he was invited to make any statement or
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presentation he would like to make on the subject of mitigation,
that is, the things he thought the court should take into account
in determining what sentence to impose, he responded that he
apologized to the United States of America for the crime that he
had committed, that he was deeply and sincerely sorry for what he
had done, and that he accepted full responsibility for the
actions he had committed.
Id. at 10.
Movant has failed to present the court with anything that
would cause the court to conclude that any aspect of movant's
Ground One has the slightest merit.
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."
United States v. Cervantes, 132 F.3d at 1110.
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."
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Id.
See also,
United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985).
Movant has failed to provide any independent 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.
2.
Ground Two
Movant's Ground Two complains of the court's application of
the Sentencing Guidelines.
cognizable under 28 u.s.c.
Complaints of that kind are not
§
Williamson, 183 F.3d 458, 462
2255 review.
See United States v.
(5th cir. 1999) (stating that
"[s]ection 2255 motions may raise only constitutional errors and
other injuries that could not have been raised on direct appeal
that will result in a miscarriage of justice if left unaddressed.
Misapplications of the Sentencing Guidelines fall into neither
category and hence are not cognizable in
§
2255 motions."
(citation omitted)).
Moreover, a review of the presentence report confirms this
court's opinion that the offense level increases of which movant
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complains were properly applied, with the consequence that any
objection made by his counsel to those increases would have been
unfounded and frivolous.
For the reasons stated, movant's Ground Two lacks merit.
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 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.
SIGNED May 8, 2015.
States
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