Acosta v. USA

Filing 12

MEMORANDUM OPINION AND ORDER. The court ORDERS that all relief sought by movant in his motion under 28 U.S.C. § 2255 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 2/4/2016) (npk)

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IN THE UNITED STATES DISTRICT OURT [----"~~ ·~
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
FEB - 4 2016
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CJ FRK, U.S. !JISTRICT COURT

OSCAR ACOSTA,

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Movant,

vs.
UNITED STATES OF AMERICA,
Respondent.

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NO. 4:15-CV-776-A
(NO. 4:13-CR-213-A)

MEMORANDUM OPINION AND ORDER
Came on for decision the motion of Oscar Acosta ("movant")
under 28 U.S.C.

§

2255 to vacate, set aside, or correct sentence.

After having considered such motion, the government's response,
and pertinent parts of the record in Case No. 4:13-CR-213-A,
styled "United States of America v. Acosta," the court has
concluded that such motion should be denied.
I.

Background
On January 17, 2014, movant entered a plea of guilty to
possession of controlled substance with intent to distribute. CR
Doc. 1 26. Movant's advisory guideline range was 360 to 480 months
imprisonment, and on May 2, 2014, the court sentenced him to a
term of 420 months' imprisonment and four years of supervised
1

The "CR Doc. _"references are to the numbers assigned to the referenced documents on the
docket of the underlying criminal case, No. 4:13-CR-213-A.

___,.

release. CR. Doc. 26; CR Doc. 33 at 4. Movant appealed his
sentence and the sentence was affirmed. United States v. Acosta,
584 F. App•x 276

(5th Cir. 2014).

The government does not dispute that movant has timely filed
his motion under 28 U.S.C.

§

2255. The pertinent facts are

adequately summarized by the government's response and will not
be repeated here.
II.

Procedural History of the Motion
On October 15, 2015, movant filed "Defendants' Motion to
Have the Government Re-Offer A Prior Plea Agreement to Defendant
and Motion to Correct an Unconstitutional Sentence." Doc. 2 1. The
Clerk construed and docketed such motion as one brought under 28

u.s.c.

§

2255 to vacate, set aside, or correct sentence. On

October 16, 2015, the court ordered the government to respond to
such motion and gave movant the opportunity to reply to the
government's response by November 30, 2015. Doc. 4. In its
response, the government suggested that the court notify movant
that it may construe movant's filing as one brought under

§

2255

and give movant the opportunity to withdraw or amend his filing.
Doc. 7 at 1-2. On December 8, 2015, in an abundance of caution,

2

The "Doc._" references are to the numbers assigned to the referenced documents on the
docket of this case, No.4: 15-CV-776-A.
2

in light of Castro v. United States, 540 U.S. 375, 377 (2003),
the court notified movant of the intent to construe the filing as
one under

§

2255 and gave movant until December 22, 2015, to

withdraw of amend his filing. Doc. 9. On December 21, 2015,
movant sought a 60 day extension to withdraw or amend his current
filing. Doc. 10. On that day, the court granted movant's motion
in part giving him until January 22, 2016, to withdraw or amend
his petition. Doc. 11. To date the filing has not been withdrawn
or amended. Thus, the court is construing movant's filing as one
brought under 28 U.S.C.

§

2255 to vacate, set aside, or correct

sentence.
III.

Grounds of the Motion
Movant asserts two grounds in support of his motion.
GROUND ONE: Movant's counsel was ineffective in advising
movant to plea guilty and not successfully negotiating a plea
agreement. Doc. 1 at 6.
GROUND TWO: Movant's counsel was ineffective in failing to
make various objections regarding movant's sentencing guidelines.
Doc. 1 at 8.

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IV.
Analysis
A.

Pertinent Legal Principles
1.

Legal Standard for 28 U.S.C.

§

2255

After conviction and exhaustion 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, 164-65
(1982); United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir.

1991) .
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. Caoua, 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
issues •are raised and

consi~~red

(1974). Further, if

on direct appeal, a defendant

is thereafter precluded from urging the same issues in a later
collateral attack." Moore v. United States, 598 F.2d 439, 441
(5th Cir. 1979)
517-18

(citing Buckelew v. United States, 575 F.2d 515,

(5th Cir. 1978)).

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2.

Legal Standard for Ineffective Assistance of Counsel

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.
Strickland v. Washington, 466 U.S. 668, 687

(1984); see also

Missouri v. Frye, 566 U.S. ___ , 132 S. Ct. 1399, 1409-11 (2012)
"[A] court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.• Strickland,
466 u.s.·at 697; see also 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, 562
U.S. 86, 112 (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, 563 U.S. 170, 189 (2011)

(quoting Strickland, 466 U.S. 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. Stated differently, the question is whether

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counsel's representation amounted to incompetence under
prevailing professional norms and not whether it deviated from
best practices or most common custom. Premo v. Moore, 562 U.S.
115, 122
B.

(2011).

The Grounds of the Motion are Without Merit
1.

Ground One

Movant's first ineffective assistance of counsel claim is
based on movant's claim that he is innocent and that he pleaded
guilty based on counsels misrepresentation that he could get him
"a plea to 10 years," which counsel failed to successfully
negotiate. Doc. 1 at 3 and 6-7. In addition, he claims that
counsel told him that "the government would not object to a
sentence on the low end of the guidelines," and that he "could
possibly get a below guideline sentence depending on how quickly
[he] pled guilty." Doc. 1 at 7. Finally, movant claims that
counsel failed to explain to him the consequences of his guilty
plea. Doc. 1 at 7.
Movant's claims are not supported by the record. Movant not
only entered a plea of guilty, he signed a factual resume that
stated he was guilty of possession of a controlled substance with
intent to distribute and stipulated to facts that supported his
conviction. CR Doc. 18. In addition, the factual resume stated
the penalty for such crime was imprisonment of not less than 5

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years and not more than 40 years and he was sentenced within that
range. CR. Doc. 18; CR. Doc. 26. At his arraignment hearing,
movant stated on record that prior to signing the factual resume
he read, understood, and discussed the legal meaning of the
document with counsel. CR Doc. 46 at 25-26. The factual resume
was also read aloud and movant testified that the facts set forth
in the factual resume were true. CR Doc. 46 at 28-29.
In addition, movant testified that he did not have a "deal
or understanding or agreement, either directly or through [his
attorney] with the government." CR. Doc. 46 at 27. Movant
testified that no one made any promises or assurances of any kind
to induce him to enter a plea of guilty. CR. Doc. 46 at 27.
Furthermore, at the very same hearing wherein he testified that
there was no plea agreement, he testified that he was satisfied
with his attorney and agreed that he did not have "any complaint
with anything [his attorney had] done or failed to do while he
was representing [him] . " CR Doc. 46 at 2 6.
Movant's claims are nothing more than conclusory allegations
which cannot sustain a claim for ineffective assistance of
counsel. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.
1983). Merely stating that he is innocent and that he would not
have pleaded guilty absent ineffective assistance of counsel will
not suffice to establish an ineffective assistance of counsel

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claim. See United States v. Holmes, 406 F.3d 337, 361 (5th Cir.
2005). Furthermore, for a defendant who seeks habeas relief on
the basis of alleged promises incon~istent 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 1106, 1110 (5th
Cir. 1998).
The same is true for movant's allegations regarding a
promised plea agreement or lower sentence. Movant's blanket
allegations that he was told he would get a plea agreement of 10
years, that the government would not object to a sentence below
the guidelines, and that his sentence would be on the low end of
the guidelines are not supported by the record. Movant clearly
testified that there was no promises, understandings, agreements,
or assurances, between he and the government or anyone else. CR
Doc. 46 at 26-27.
In addition, movant's claim that counsel failed to explain
the consequence of the plea are clearly contradicted by the
record wherein he testified that he discussed with counsel how
the sentencing guidelines would apply in his case. Doc. 46 at 11.
Furthermore, at his arraignment the court made clear that it was

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the court that would determine his sentence. Doc. 46 at 11-14.
Movant cannot prevail on an ineffective assistance of counsel
claim by merely stating conclusory allegations clearly
contradicted by the record. See Ross, 694 F.2d at 1012.
2.

Ground Two

Movant's second ground is that counsel was ineffective in
failing to challenge the presentence report as to the base
offense level, the upward adjustments that were not proved beyond
a reasonable doubt, and that the 18 U.S.C.

§

3553 sentencing

factors were not properly applied with regard to disparity among
similar defendants with similar records found guilty of similar
crimes. Doc. 1 at 8-11.
As to counsel's failure to object to the base level of his
sentence, the factual resume movant signed stated movant
consented to the search of a vehicle which contained 755 grams of
white powder and that movant told an investigator the weight of
methamphetamine found in the vehicle was originally 3 kilograms.
CR. Doc. 18. As stated above, at his arraignment hearing, movant
stated on record that prior to signing the factual resume he
read, understood, and discussed the legal meaning of the document
with counsel. CR Doc. 46 at 25-26. The presentence report held
movant accountable for 738.9 grams of methamphetamine, which the
presentence reports states is a conservative estimate. CR. Doc.
9

21 at 9-10. This amount of methamphetamine resulted in a base
offense level of 36. CR. Doc. 21 at 11. Movant contends that his
base offense level should have been 29. Doc. 1 at 8-9.
While this claim is styled as an ineffective assistance of
counsel claim, a motion under

§

2255 may not be used to address

claims of misapplication of the sentencing guidelines which it
appears is movant's main goal. United States v. Williamson, 183
F. 3d 458, 462

(5th Cir. 1999). Even if this is an ineffective

assistance of counsel claim, an ineffective assistance claim
cannot be based on "an attorney's failure to raise a meritless
argument," and here the presentence report was supported by
plenty of evidence. See United States v. Kimbler, 167 F.3d 889,
893

(5th Cir. 1999)

(citations omitted).

Next, movant claims that "the upward adjustments are not
constitutionally justified, having not been proven beyond a
reasonable doubt,'' and relies on Apprendi for this proposition.
Doc. 1 at· 9; Apprendi v. New Jersey, 530 U.S. 466 (2000).
However, United States v. Booker, made clear that the federal
sentencing guidelines are just advisory alleviating the problem
movant alleges is present in this motion. 543 U.S. 220, 233, 259
(2005). As to counsel's failure to object to these

up~ard

adjustments, again, an ineffective assistance of counsel claim
cannot be based the failure to raise a meritless argument.
Kimbler,· 167 F.3d at 893. Plenty of evidence, including movant's

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factual resume, indicated that these upward adjustments were
warranted such that the court cannot conclude that failure to
object to these adjustments amounted to ineffective assistance of
counsel. Neither has movant shown that counsel's failure to
challenge the upward adjustments would have changed the outcome
of the proceeding. See Strickland, 466 U.S. at 687.
Movant's final claim is that the court did not give enough
weight to 18

u.s.c.

§

3553 (a) (6), which is the factor regarding

disparity in sentences, when sentencing movant. Doc. 1 at 10.
However, movant was sentenced within the guideline range and the
court stated that the sentence was imposed taking into account
"all factors considered in 18 United States Code Section
3553(a) .• Doc. 26; Doc. 33 at 7. Furthermore, movant has provided
no evidence to suggest that counsel's performance was
unreasonable in failing to challenge the sentence based on
disparity in sentences from similar cases. See Strickland, 466

u.s. at 687. As previously stated, movant cannot prevail on an
ineffective assistance of counsel claim by merely stating
conclusory allegations. See Ross, 694 F.2d at 1012.

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v.
Order
Consistent with the foregoing,
The court ORDERS that all relief sought by movant in his
motion under 28 U.S.C.

§

2255 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 constit~tional right.
SIGNED February 4, 2016.

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