Jimenez v. USA
Filing
11
Memorandum Opinion and Order... The court ORDERS that all relief sought by movant in his motion under 29 U.S.C. § 2255 be, and is hereby, denied. (Ordered by Judge John McBryde on 4/20/2016) (wxc)
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U.S. ll!STIUCT COliRT
NOllTIIERN fliSTJUCT OF TEXAS
DISTRIC~ COUR~·fR!i'iJ)~
AnR
IN THE UNITED STATES
NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION
I'll'"
2 Q 2016
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0 rllK, !J.S.HISTI\ICT COl JilT
ISREAL JIMENEZ,
§
§
Movant,
§
§
§
§
§
§
VS.
UNITED STATES OF AMERICA,
Respondent.
NO. 4:16-CV-177-A
(NO. 4:13-CR-080-A)
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Isreal Jimenez
("movant") under 28 U.S.C.
§
2255 to vacate, set aside, or
correct sentence. After having considered such motion, its
supporting memorandum, the government's response, and pertinent
parts of the record in Case No. 4:13-CR-080-A, styled "United
States of America v. Isreal Elias Jimenez, et al.," the court has
concluded that the motion should be denied.
I.
Background
Information contained in the record of the underlying
criminal case discloses the following:
On May 15, 2013, movant was named, along with six others, in
a one-count indictment charging them with conspiracy to possess
with intent to distribute 100 grams or more of a mixture and
substance containing a detectable amount of heroin, in violation
.
of 21 U.S.C.
§
846. Cr. Doc. 1 27. Attorney Andrew Ottaway was
appointed to represent movant and represented him through
sentencing and on appeal. Cr. Doc. 3.
On June 27, 2013, movant pleaded guilty without a plea
agreement. Cr. Doc. 66. Under oath, movant stated that no one had
made any promise or assurance of any kind to induce him to plead
guilty. Further, movant stated his understanding that the
guideline range was advisory and was one of many sentencing
factors the court could consider; that the guideline range could
not be calculated until the PSR was prepared; that the court
could impose a sentence more severe that the sentence recommended
by the advisory guidelines and movant would be bound by his
guilty plea; movant was satisfied with his counsel and had no
complaints regarding his representation; and, movant and counsel
had reviewed the factual resume and movant understood the meaning
of everything in it and the stipulated facts were true and
accurate. The factual resume recited each of the elements of the
conspiracy alleged in the indictment and set forth the stipulated
facts that established each element. Cr. Doc. 67. The factual
resume stated that movant faced a term of imprisonment of not
less than five years or more than forty years. Id. The court
'The "Cr. Doc." reference is. to the number of the item on the court's docket in the underlying
criminal case.
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reviewed each part of the factual resume with movant and
determined that his plea was a knowing and voluntary one.
The PSR reflected a total offense level of 37, a criminal
history category of II, and an advisory sentencing range of 235293 months' imprisonment. Cr. Doc. 90
(PSR , 89). It assessed
three 2-level enhancements for possessing a firearm, maintaining
drug premises, and playing an aggravating role. Id.
(PSR , , 40,
41, 43). And, it allowed movant reduction of three levels for
acceptance of responsibility. Id.
(PSR ,, 47-48). Movant filed
written objections to the firearm enhancement and total drug
amount. He later withdrew the objection as to the firearm, but
persisted in objecting to the drug quantity calculation, arguing
that in the Dallas/Fort Worth area, an ounce of heroin weighed 25
grams, rather than the 28.35 grams used in the sentencing
guidelines. The court overruled the objection and sentenced
movant to 240 months' imprisonment.
On appeal, movant's sole issue was that the court overestimated the quantity of drugs he possessed. The Fifth Circuit
disagreed and affirmed the sentence. United States v. Jimenez,
587 F. App'x 217
(5th Cir. 2014). Movant did not pursue a
petition for writ of certiorari.
3
II.
Grounds of the Motion
Movant urges four grounds in support of his motion, stated
as follows:
Ground One: cause and prejudice
Supporting FACTS .
. petitioner was denied his right
to an evidentiary hearing as to determine whether the
facts and basis against the defendant were true.
Petitioner was not given the opportunity to challenge
the affidavits and was ineffectively represented by
counsel for not challenging the breach of the plea
agreement.
Ground Two: The Petitioner's rights to due process of
law were violated when he was held to a guilty plea
that was not knowingly made.
Supporting FACTS .
petitioner was incorrectly
informed about the consequences behind his guilty plea.
Specifically about the mandatory maximum and minimum
penalties. As well as the base offense level for the
drug amount to which petitioner plead guilty to, stated
in the indictment, and factual resume.
Ground Three: Petitioner's conviction and sentence were
tainted as petitioner did not receive effective
assistance of counsel during the underlying criminal
proceedings.
Supporting FACTS
. petitioner was denied effective
assistance of counsel when counsel failed to object
during sentencing and on appeal to the enhancements
recommended by the PSR 2Dl.l(b)l, 2Dl.l(b) (12) and
3Bl.l(c) counsel was also ineffective for not objecting
to the over all drug amount of the conspiracy.
Ground Four: Failure to investigate and file a motion
to suppress illegally siezed [sic] evidence.
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Supporting FACTS .
. counsel failed to file any
motions to suppress illegally siezed [sic] evidence and
to question the consent of surveillance and the entire
investigation lead by the ATF and Fort Worth Police
Department, which would [have] shown for the record the
petitioner was not involved in the conspiracy.
Doc. 2 1.
III.
[Wplicable Legal Standards
A.
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
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 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 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
2
The "Doc." reference is to the number of the item on the court's docket in this civil action.
5
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)
517-18
B.
Moore v. United States, 598 F.2d 439, 441
(citing Buckelew v. United States, 575 F.2d 515,
(5th Cir. 1978)).
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.
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
6
U.S. 86
(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, 131 S. Ct. 1388, 1403
(quoting Strickland, 466 U.S. at 686).
(2011)
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.
IV.
Analysis
All of movant's grounds appear to be complaints about the
conduct of his counsel. None has the slightest merit.
Movant's plea of guilty was knowing and voluntary and movant
declared under oath that he was satisfied with his counsel.
Movant was fully informed of the sentence he faced and understood
that he would not be allowed to withdraw his plea if he was
dissatisfied with the sentence imposed. Further, movant
apologized for his actions and accepted responsibility for what
he had done. Cr. Doc. 167 at 7-8. As movant's own brief recites
(under the heading "procedural facts"):
"On or about 2011 until
about Nov. 2012, in Fort Worth, Texas and elsewhere,
[movant],
and Stephanie White distributed heroin to/with Terry Watkins,
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Jason Walker, Artist Drayden[,] Garwett Watkins, and Alfred
Wright." Doc. 2 at 2. To claim, as movant now does, that he "did
not possess or distribute any of the drugs," Doc. 2 at 5, or that
he "plead guilty to a crime he did not commit," Doc. 2 at 11, is
ludicrous.
Movant has failed to present the court with anything that
would cause the court to conclude that any aspect of his motion
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 1106, 1110 (5th
Cir. 1998). 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's guilty plea was knowing and
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voluntary and made with sufficient awareness of the relevant
circumstances and likely consequences. Bradshaw v.
U.S. 175, 183
Sturn~,
545
(2005). 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.
To the extent that movant refers to a "breach of the plea
agreement" by the government, Doc. 2 at 19, the allegation is
made of whole cloth. There was no plea agreement with the
government and movant does not purport to submit any evidence to
the contrary. And, by pleading guilty, movant waived the
opportunity to test the sufficiency of the government's evidence
at trial. He cannot now contest whether the evidence would have
been sufficient to convict him. Forrester v. United States, 456
F.2d 905, 907
(5th Cir. 1972).
Movant's counsel raised on appeal the only potentially
meritorious claim that movant had, regarding the drug quantity
calculation, and the court of appeals affirmed movant's sentence,
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which was in accordance with the guidelines. That issue cannot
again be raised here. United States v. Kalish, 780 F.2d 506, 508
(5'h Cir. 1986). Moreover, counsel cannot be faulted for failing
to raise nonmeritorious grounds on appeal. United States v.
Kimler, 167 F. 3d 889, 893
(5'h Cir. 1999).
In sum, there is no evidence that had his counsel done
anything differently, the outcome of movant's case would have
been any different. His complaints relative to his counsel lack
merit.
v.
Order
The court ORDERS that all relief sought by movant in his
motion under 29 U.S.C.
§
2255 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.
§
2255(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
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denial of a constitutional right.
SIGNED April 20, 2016.
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