Ovalle-Cerda v. USA

Filing 9

Memorandum Opinion and Order All relief sought by movant in his motion under 28 USC 2255 is denied; motion for appt of cnsl denied. Certificate of Appealability denied. (Ordered by Judge John McBryde on 9/8/2016) (wrb)

IN

JOSE ROBERTO OVALLE-CERDA,

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Movant,

vs.

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UNITED STATES OF AMERICA,
Respondent.

NO. 4:16-CV-682-A
(NO. 4:15-CR-172-A)

MEMORANDUM OPINION AND ORDER
Came on for decision the motion of Jose Roberto Ovalle-Cerda
("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. 4:15-CR-172-A, styled "United States of America v. OvalleCerda et al," the court has concluded that such motion should be
denied.'

'The court notes that petitioner has filed an interlocutory appeal with the United States Court of
Appeals for the Fifth Circuit. In his notice of appeal, however, petitioner indicates that he "appeals to the
Northern District of Texas from deny petitioner motion under 28 U.S.C.§2255 pursuant to mandate
imposed on July 27,2016," doc. 8 at I, which the court takes to be a reference to the government's
response in opposition to petitioner's § 2255 motion, doc. 6. It is apparent, therefore, that petitioner's
appeal is frivolous insofar as it does not seek review of a decision of this court. Accordingly, the court
does not view the notice of appeal as sufficient to divest it of jurisdiction. Fed. R. Civ. P. 62(a); Williams
v. Brooks, 996 F.2d 728, 730 (5th Cir. 1993) (holding that "the filing of a non-frivolous notice of
inter!ocutmy appeal ... divests the district court ofjurisdiction to proceed"); Taylor v. Sterrett, 640 F.2d
663,668 (5th Cir. 1981) (explaining that "where an appeal is allowed from an interlocutory order, the
district court may still proceed with matters not involved in the appeal").

I.

Background
On August 28, 2015, movant pleaded guilty to the offense of
alien in possession of a firearm in commerce. CR Doc.' 1; CR.
Doc. 33. Movant's Guideline imprisonment range was 24 to 30
months.

On December 18, 2015, the court sentenced him to a term

of imprisonment of 30 months and three years of supervised
release. CR. Doc. 53; CR. Doc. 54. Movant did not appeal his
sentence.
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.

Grounds of the Motion
The wording and structure of the motion is such that the
court has difficulty defining exactly what the grounds of the
motion are.

However, the court is going to proceed on the

assumption that in the government's response it accurately
interpreted the grounds of the motion to be as follows:
•

Ground One: That his lawyer provided ineffective
representation "by not devoting full effort" to

2

The "CR Doc._" references are to the numbers assigned to the referenced documents on the
docket of the underlying criminal case, No. 4: 15-CR-172-A.
2

the case; by not "raising a specific ethical case
of u.s. [sic) jurisprudence"; and by having "show
a condiction [sic) that represent[ed] a conflict
of interest."
(CV No.1 at 4.)
•

Ground Two: That his conviction under 18 U.S.C.
§ 922 (g) (5) (A) for possessing a firearm as an
illegal alien violated his "[F]ifth [A)mendment
right of due process because section 922 (G) (5) (A)
and the statutory provision converted the residual
clause in vagueness provision's [sic) . "
( Id.)

•

Ground Three: That his
to be proven to a jury
as required by Alleyne
Ct. 2151, 2155 (2013).

sentencing guidelines had
beyond a reasonable doubt
v. United States, 133 S.
(Id.ats.)

Doc. 6 at 2.
III.
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.

(1982); United States v. Shaid, 937 F.2d 228, 231-32

152, 164-65
(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. Capua,
3

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." Moore v. United States, 598 F.2d 439, 441
(5th Cir. 1979)

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

517-18 (5th Cir. 1978)).
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
Missouri v. Frye, 566 u.s.
• [A]

(1984); see also

, 132 S. Ct. 1399, 1409-11 (2012).

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
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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

counsel's representation amounted to incompetence under
prevailh1g professional norms and not whether it deviated from
best practices or most common custom. Premo v. Moore, 562 U.S.
115, 122 (2011).
B.

The Grounds of the Motion are Without Merit
1.

Ground One

Movant's claim are nothing more than a series of conclusory
allegations which cannot sustain a claim for ineffective
assistance of counsel. See Ross v. Estelle, 694 F.2d 1008, 1012
(5th Cir. 1983). Movant wholly fails to provide any support
regarding the "ethical case of u.s.

[sic]

jurisprudence" or

counsel's conflict of interest. Movant appears to be claiming
that he purchased the firearms in question legally and had
receipts to prove he purchased the firearms. However, movant pled
guilty to being an alien in possession of a firearm in commerce,
a crime for which compliance with purchasing requirements
applicable to a United States citizen would be no defense. CR.
5

Doc. 33. An ineffective assistance of counsel claim cannot be
based on "an attorney's failure to raise a meritless argument."
See United States v. Kimbler. Thus, movant has not shown
ineffective assistance of counsel.
2.

Ground Two

Movant's second ground, that 18 U.S.C.

§

922(g) (5) (A) is

unconstitutionally vague, is supported by the allegation that he
was arrested outside of the store where he purchased the firearm
and that there was no evidence he was selling guns. Doc. 1 at 5.
However, movant cannot use a motion under

§

2255 to raise an

argument that could have been raised on direct appeal. Davis, 417
U.S. at 345. It appears that movant is contesting that the
firearm traveled in interstate commerce. However, movant signed a
factual resume that established that the firearm had traveled in
interstate commerce and pleaded guilty to the charge of alien in
possession of a firearm in commerce. CR. Doc. 33; CR. Doc. 35.
Thus, movant has not shown that he has a cognizable claim under
2255.
3.

Ground Three

Movant's third ground is that under Alleyne v. United
States, his sentencing guidelines had to be proved to a jury
beyond a reasonable doubt. Doc. 1 at 5-6; 133 S. Ct. 2151, 2155
(2013). Again, movant cannot raise arguments he failed to raise
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§

on direct appeal. Davis, 417 U.S. at 345. In addition, 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. See United States v. Williamson, 183 F.3d 458, 462

(5th

Cir. 1999). Movant's conclusory allegations cannot form the basis
of a motion under

§

2255. See Ross,

694 F.2d at 1012.

IV.
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.

The court further ORDERS that Ovalle-Cerda's motion for
appointment of counsel filed on August 31, 2016, be, and is
hereby, denied.

* * * * * *
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 1l(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,

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denied, as movant has not made a substantial showing of the
denial of a constitutional right.

/

SIGNED September 8, 2016.

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