Jimenez v. USA
OPINION AND ORDER: This Section 2255 action is DENIED with prejudice as meritless. (Ordered by Judge Reed C. O'Connor on 11/8/2017) (skg)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA,
Civil No. 4:16-CV-618-O
OPINION AND ORDER
Herlindo Jimenez (“Movant”) filed a motion to vacate, set aside, or correct his federal
sentence pursuant to 28 U.S.C. § 2255. After considering his Section 2255 motion (ECF No. 1) and
the government’s response (ECF No. 5), the Court concludes that the Section 2255 motion should
be denied as mertiless.
Movant, who was then represented by counsel, pleaded guilty to conspiracy to possess with
the intent to distribute a controlled substance. See United States v. Jimenez, 4:15-cr-07-O-(02) (N.D.
Tex.), ECF No. 36. Movant’s Presentence Report (“PSR”) recommended a two-level increase to his
offense level because he led the conspiracy. See United States v. Jimenez, 4:15-cr-07-O-(02) (N.D.
Tex.), ECF No. 49; see also U.S.S.G. §3B1.1(c) (increasing the defendant’s offense level if he “was
an organizer, leader, manager, or supervisor” in the criminal activity). Movant’s counsel objected
to an enhancement based on his role in the offense. See United States v. Jimenez, 4:15-cr-07-O-(02)
(N.D. Tex.), ECF No. 51 at 1.
Before his sentencing hearing, Movant filed a motion to represent himself pro se, citing
Faretta v. California, 422 U.S. 806 (1975). See United States v. Jimenez, 4:15-cr-07-O-(02) (N.D.
Tex.), ECF No. 65. At the hearing, the Court conducted a thorough colloquy with Movant, who
persisted in his desire to represent himself. See United States v. Jimenez, 4:15-cr-07-O-(02) (N.D.
Tex.), ECF No. 83 at 7-10. The Court admonished Movant that he would “be far better defended
by a trained lawyer” and that it was “unwise” for him “to try to represent [himself].” See United
States v. Jimenez, 4:15-cr-07-O-(02) (N.D. Tex.), ECF No. 83 at 9-10. Nevertheless, Movant
knowingly and voluntarily waived his right to counsel, so the Court permitted him to proceed pro
se. See id. At the conclusion of the sentencing hearing, the Court overruled Movant’s objections
to the PSR and sentenced him to 293 months in prison with four years of supervised release. See
United States v. Jimenez, 4:15-cr-07-O-(02) (N.D. Tex.), ECF No. 70.
Movant, pro se, timely filed a notice of appeal. See United States v. Jimenez, 4:15-cr-07-O(02) (N.D. Tex.), ECF No. 79. His appeal was later dismissed, however, because he failed to
prosecute it. See United States v. Jimenez, No. 15-10628 (5th Cir. Oct. 22, 2015).
Movant now claims that: (1) his “sentence was enhanced by the use of the ‘residual clause’
language which has been deemed unconstitutional” by Johnson v. United States, 135 S. Ct. 2551
(2015); and (2) his counsel was ineffective for failing to (a) object to the sentencing enhancement
for Movant’s leadership role, (b) request that his state and federal sentences run concurrently, (c)
present mitigating evidence at sentencing, and (d) perfect his direct appeal. See ECF No. 1 at 4-8.
There is no merit to Movant’s claim that his sentence was enhanced under a provision of the
United States Sentencing Guidelines (“U.S.S.G.”) that was overturned in the wake of Johnson. In
Johnson, the Supreme Court held “that imposing an increased sentence under the residual clause of
the Armed Career Criminal Act,” 18 U.S.C. § 924(e)(2)(B)(ii)–which clause defines a “violent
felony” as one “involv[ing] conduct that presents a serious potential risk of physical injury to
another”–“violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.
But Movant was not convicted of violating the Armed Career Criminal Act. And, contrary
to his claim, his sentence was not enhanced under any provision of the U.S.S.G. that increases a
defendant’s offense level on account of a prior violent felony or crime of violence. Cf, e.g., U.S.S.G.
§ 4B1.1. So, even if he could successfully challenge a definition in the U.S.S.G. that is similar to
the definition that was at issue in Johnson, he would not be entitled to relief. More fundamentally,
Movant’s argument is foreclosed by Beckles v. United States, 137 S. Ct. 889, 892 (2017). In Beckles,
the Supreme Court held that, unlike the criminal statute at issue in Johnson, “the Guidelines are not
subject to a vagueness challenge under the Due Process Clause.” 137 S. Ct. at 892; see also United
States v. Martinez, 682 F. App’x 304, 304 (5th Cir. 2017) (Beckles “squarely held that the
Sentencing Guidelines are not subject to vagueness challenges under the Due Process clause.”).
Thus, Movant is not entitled to relief under Johnson.
Ineffective Assistance of Counsel Claims
Nor is Movant entitled to relief on his ineffective assistance of counsel claims. The Sixth
Amendment guarantees a criminal defendant “reasonably effective assistance” of counsel. Strickland
v. Washington, 466 U.S. 668, 687 (1984). To prevail on his ineffective assistance claims, Movant
must show that (1) his counsel’s representation 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. Id. at 687-91, 694.
Movant first faults his counsel for failing to object to the sentencing enhancement for his
leadership role in the conspiracy. But, before Movant elected to end counsel’s representation and
to represent himself, counsel filed that exact objection. See United States v. Jimenez, 4:15-cr-07-O(02) (N.D. Tex.), ECF No. 51 at 1 (“There is not legally sufficient evidence or supporting
documentation to conclude that [Movant] had a management or leadership role.”). Thus, counsel
was not deficient as Movant claims. And, because the Court expressly overruled that objection at
sentencing, Movant cannot establish prejudice.
Movant also challenges counsel’s conduct at the sentencing hearing, claiming that counsel
should have asked the Court to order that his federal sentence run concurrent with his state sentence
and presented mitigating evidence. Because Movant waived his right to counsel, and elected to
proceed pro se through the sentencing hearing, these ineffective assistance claims necessarily fail.
See Faretta, 422 U.S. at 834 n.46 (1975) (“[W]hatever else may or may not be open to him on
appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his
own defense amounted to a denial of ‘effective assistance of counsel.’”). By exercising his
constitutional right to present his own defense, Movant necessarily waived his constitutional right
to be represented by counsel. See Wilson v. Parker, 515 F.3d 682, 696 (6th Cir. 2008). “Logically,
a defendant cannot waive his right to counsel and then complain about the quality of his own
defense.” Id. Thus, Movant cannot successfully challenge his counsel’s conduct at the sentencing
hearing at which Movant chose to represent himself.
Finally, Movant claims that his counsel failed to file a direct appeal, as Movant ordered him
to do. That claim fails for two reasons. First, “[Movant] waived his right to complain about a . . .
notice of appeal because he represented himself at the time” that he filed it. Sloan v. Collins, 21 F.3d
1109, 1109 (5th Cir. 1994) (per curiam). Second, because Movant did timely file a notice of appeal,
he cannot establish prejudice. See id. In sum, there is no merit to Movant’s claims that his counsel
Upon review of the motion to vacate and the files and records of this case, an evidentiary
hearing appears unnecessary. No evidentiary hearing is required if “the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
In this instance, the matters reviewed by the Court conclusively show that Movant is entitled to no
Certificate of Appealability
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the Court denies a certificate of appealability. Movant has failed to show (1) that reasonable jurists
would find this Court’s “assessment of the constitutional claims debatable or wrong,” or (2) that
reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of
a constitutional right” and “debatable whether [this Court] was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 48 (2000).
In the event that Movant elects to file a notice of appeal, the Court notes that he will need to
pay the appellate filing fee or submit a motion to proceed in forma pauperis.
This Section 2255 action is DENIED with prejudice as meritless.
SO ORDERED this 8th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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