Mendoza v. USA
Memorandum Opinion and Order..Motion under 28 USC 2255 denied. Certificate of appealability denied. (Ordered by Judge John McBryde on 10/17/2016) (wrb)
IN THE UNITED STATES DISTRICT COURT''
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Comes now for consideration the motion of Lenin Mendoza
("Mendoza•), under 28 U.S.C.
2255 to vacate, set aside, or
correct sentence. Upon reviewing the motion, the government's
response, and relevant legal authorities, the court concludes
that movant's motion should be denied.
On March 13, 2015, movant pleaded guilty to one count of
possession with intent to distribute a controlled substance in
violation of 21 U.S.C.
(b)(1)(C). Cr. Doc. 54. 1
July 26, 2015, the court sentenced movant to a term of
imprisonment of 240 months, to be followed by a three-year term
of supervised release. Cr. Doc. 77. The United States Court of
'The "CR Doc.
"references are to the numbers assigned to the
referenced documents on the docket of the underlying criminal case,
Appeals for the Fifth Circuit affirmed movant's conviction and
sentence. Cr. Doc. 92. Movant did not seek certiorari review and
his conviction became final on July 19, 2016.
Movant's Stated Grounds for Relief
In support of his motion, movant puts forth two grounds for
Constitutionally Effective Assistance of Counsels,
thereby violating the Sixth Amendment and 18 U.S.C. §
(a) Supporting Facts .
Court Appointed Appellate Counsel was Constitutionally
Ineffective for failing to investigate the criminal case
for possible issues. In the event Tiffany A. Talamantez
had investigated the criminal case, she would have
discovered that the Court accepted the Petitioner's
guilty plea without making known to him that he had a
right to preserve certain issues for appeal in a contract
(A.K.A. Plea Agreement). This failure constituted a
deprivation of right to contract. See 42 U.S.C. § 1981.
Appellate Counsel was duty bound by A.B.A. standards to
raise this "PLAIN ERROR" issue.
Constitutionally Effective Assistance of Counsel by:
[1)] Counsel Danny Burns advised the Petitioner to
withdraw his motion to withdraw his guilty plea stating
that if he did not, he would get a life sentence.
2) Counsel Danny Burns xfailed to advise the Petitioner
that by pleading guilty without a plea agreement, he
could be found guilty and sentenced for conduct that he
did not commit and had no knowledge of.
3) Counsel Danny Burns failed to object to the Court's
appointment of an interpreter whose dialect of spanish
did not provide a reasonable understanding of the Court
4) Counsel Danny Burns enticed the Petitioner to plea
guilty based upon his erroneous •miscalculation of the
Petitioner's sentencing guidelines.
5) Counsel Danny Burns failed to advise the Petitioner
that he had the specific right to request consent to
"reserve in writing the right to have an Appellate Court
review of adverse determination . . . " pursuant to Fed.
R. Crim. P., Rule 11(a) (2) and 42 u.s.c. § 1981.
6) Had Counsel drafted a plea agreement that specified
particular stipulated facts, rather than allowing the
Petitioner to enter a cover-all verbal plea that he did
not understand, then the Petitioner would have had his
right to specific performance reserved pursuant to 42
§ 1981. Had a proper plea agreement been
negotiated by counsel, the Petitioner would have been
exposed to a lower sentence liability. The Petitioner has
thus been prejudiced by Counsel's Ineffectiveness.
GROUND TWO: The Court sentenced the Petitioner in
violation of his Fifth Amendment right to due process of
law, to WIT:
(a) Supporting Facts . .
1) The Court failed to comply with the mandates passed by
Congress in 18 U.S.C. §3006A, which requires that the
Court appoint adequate representation. Obviously, if
Court appointed counsel was so ineffective that he failed
to protect his client's right to Due Process and his
right to contract, then the Court • s appointment is a
failure to comply with 18 U.S.C. § 3006A. The Petitioner
is thus prejudiced by the Court's failure to uphold the
Constitution of the United States constituting a "PLAIN
2) The Court failed to advise the Petitioner of any
reasonable sentence exposure or the Court's obligation to
calculate the applicable sentencing guideline range and
to consider that range.
3) The Court failed to comport with the Due Process
requirement of ensuring that the Plea is voluntary. In
the Petitioner's criminal case, his sentence exposure was
directly dictated by a mysterious drug weight. The
Petitioner, having knowledge of the drug weight he was in
possession of, trialxcounsel calculating his sentence
exposure based upon that weight, and then the Court
calculating a sentence based on a different weight,
renders the Petitioner's plea of guilty unknowing and
In the Petitioner's criminal case, the government has
written itself a blank check that was cashed by the Court
in its efforts to divert American tax dollars into the
Judicial District. In this the Petitioner's criminal
case, an information was filed that specified no drug
weight. The Court appointed appellate counsel who not
only misadvised the Petitioner, but who also provided no
adversarial testings that would have provided the
Petitioner with a reasonable expectation of sentence
exposure. The government then provided the Court with
questionable testimony upon which. the Court elevated the
Petitioner having no reasonable expectation and/or
knowledge of what conduct he would be sentenced for. The
Petitioner was therefore prejudiced by being sentenced
for conduct he had no idea he could be held culpable for
at the time of plea agreement constituting a "PLAIN
Doc. 1 at 4-7. 2
:. The "Doc.
" references are to the numbers assigned to the
referenced documents on the docket of this case, No. 4:16-CV-792-A.
A. Pertinent Legal Principles
Legal Standard for 28 U.S.C.
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
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). 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,
(5th Cir. 1978)).
Legal Standards for Ineffective Assistance of
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, 132
(1984); see also
ct. 1399, 1409-11 (2012).
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)
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
prevailing professional norms and not whether it deviated from
best practices or most common custom. Premo v. Moore, 562 U.S.
To satisfy Strickland's prejudice standard when a claim of
ineffective assistance of counsel relies on the competence of
advice provided during plea negotiations,
"the defendant must
show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59
"When the petitioner challenges the performance of his
appellate counsel, he must show that with effective counsel,
there was a reasonable probability that he would have won on
appeal." Moreno v. Dretke, 450 F.3d 158, 168 (5th Cir. 2006).
B. The Grounds Are Frivolous
Within Ground One, movant directs arguments at the
performance of Danny Burns, who represented movant in his effort
to withdraw his guilty plea ("Special Trial Counsel"), and
Tiffany Talamantez, who represented movant on appeal ("Appellate
Counsel") . The court begins with movant's allegations directed at
Special Trial Counsel.
Movant first argues that Special Trial Counsel, an attorney
appointed specifically to ensure the voluntariness of movant's
guilty plea, induced plaintiff's guilty plea. 3 More specifically,
movant argues that Special Trial Counsel lied to him about his
likely sentence in the event that he withdrew his motion to
withdraw his guilty plea, or alternatively that Special Trial
Counsel miscalculated his sentence at that time, and that Special
Trial Counsel threatened that,
if movant did not withdraw his
motion and reinstate his guilty plea, he would receive a life
sentence upon being found guilty at trial. As the government
briefing demonstrates, however, movant not only had numerous
opportunities to make such claims but indeed did so with regard
to his first appointed attorney, which prompted the court to
appoint Burns as Special Trial Counsel for movant's motion to
withdraw his guilty plea. The court discerns no basis for
concluding that Special Trial Counsel failed to fulfil such role.
At his March 13, 2015 rearraignment, movant, who was
represented by Erin Hendricks ("Trial Counsel") through that
point in his case, was given an explanation of his trial rights
The court first addresses in this section movant's points
directed at the performance of Danny Burns that appear in paragraphs
one, two, and four within Ground One. The court then addresses
movant's point three in Ground One. Finally, the court addressed
movant's points five and six in Ground One, before turning to movant's
arguments in Ground One that are directed at the performance of
and the consequences of the waiver of those rights. Cr. Doc. 85
at 11-13. When movant was asked whether he understood those
rights and the consequences of waiving those rights, movant
stated that he did.
Id. at 13. At the hearing, movant was also
admonished of the importance of entering his guilty plea in a
knowing and voluntary manner. Id. at 15. Further, movant was
informed that, in federal court, the judge is responsible for
determining the appropriate penalty notwithstanding the
defendant's decision to enter a guilty plea and that "the penalty
would be decided on the basis of the facts set forth in the presentence report and heard here." Id. at 14-15. Movant
acknowledged understanding of the sentencing scheme to which he
was subject and proceeded to enter a plea of guilty. Id. at 21,
Despite his statements made at the rearraningment hearing,
movant, on May 28, 2016, filed with the court a motion to
withdraw his guilty plea on the basis that movant "was not given
full disclosure of the charges," before entering a guilty plea
that he then claimed he had "signed under duress" as a result of
his attorney failing to give him a "full disclosure of the
penalties involved."' Cr. Doc. 61. On May 29, 2016, the court
Movant, in his motion to withdraw his plea, expressed concern
(continued ... )
appointed Special Trial Counsel to represent movant in his effort
to withdraw his guilty plea. Cr. Doc.
On June 12th, 2015,
a hearing was held on movant's motion to
withdraw his guilty plea. Cr. Doc.
67. At that hearing,
( ... continued)
that his guidelines range was inconsistent with his expectations,
I, Lenin Mendoza, would like to retract my guilty plea on
the grounds that I was not given full disclosure of the
charges at the time I had given my plea. I signed under
duress and my attorney had told me that if I was to plead
guilty that I was facing level 26 and on the 1st category
level and I was looking at 70-87 months and now the
Presentence Investigation Report has a level of 37 and a
criminal history category of 2 and the range is 235 months
to 293 months which is Zone D, for the maximum sentence of
no more than 240 months.
That is not what I had agreed to Judge McBryde so
evidentially my attorney did not give me a full disclosure
of the penalties involved. So your honor I change my plea to
not guilty, and do not consent nor agree or accept any other
plea. I will be able to prove beyond a reasonable doubt that
the fabricated charges will be discredited.
I am working and studying Federal Rule of evidence 609.4 on
the impeachment by prior convictions in federal
I am being accused of ''Extrinsic Evidence," there was never
a complete revelation of all material facts claiming duress
under necessity chooses to act in a way that the law
ultimately approved, under circumstances which make
conviction and punishment inappropriate, unfair, I apologize
for my ignorance of the law and ask you to please retract my
guilty plea and grant me the opportunity to properly defend
myself as best I know how. I do not consent or accept to
this plea arrangement of guilty. Thank you Judge Me Bryde.
Doc. 61 (Errors in Original). Thus, movant did not purport to base
desire to withdraw on a misunderstanding of what was discussed at
rearraignment but instead did so based on his dissatisfaction with
drug quantities that were attributed to him.
Trial Counsel informed the court that Special Trial Counsel and
movant had discussed his waiver of the attorney-client privilege
with regard to Trial Counsel, confirmed that Special Trial
Counsel had communicated to defendant the risk that, by
withdrawing his guilty plea, he could face a different set of
charges, and stated that movant, despite this explanation, wished
to withdraw his motion to withdraw his guilty plea. Cr. Doc. 86
at 6-7. Movant was then asked directly by the court to confirm
that he understood the information conveyed by Special Trial
Counsel, to confirm that he agreed with the accuracy of the
report, and and to confirm that he wished to withdraw his motion
to change plea. Id. at 7. Movant responded affirmatively to each
inquiry. Id. Indeed, movant not only withdrew his motion to
withdraw his guilty plea but also went so far as to altogether
retract his allegations regarding trial counsel, instead
affirming that he was satisfied that Trial Council "had conducted
herself properly in all respects." Id. at 7-8. Movant's
allegations in the instant motion regarding Special Trial Counsel
are insufficient to overcome such statements made under oath at
the time that he pleaded guilty and at the time that he withdrew
his motion to withdraw his guilty plea.
Movant further argues that Special Trial Counsel was
ineffective insofar as trial counsel failed to procure a
suitable 5 interpreter for movant on the grounds that the
interpreter procured by Special Trial Counsel did not speak his
dialect of Spanish. However, movant does not allege any prejudice
resulting from his alleged inability to understand the special
proceedings. Thus, movant's claim fails both Strickland prongs.
Finally, movant argues that counsel was ineffective for
depriving him of his right to contract insofar as counsel failed
to secure a plea bargain. However, precedent of the Supreme Court
and this circuit resoundingly establishes and reinforces the
proposition that a federal prisoner has no right to a plea
agreement. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 561
(1977). Thus, the absence of a plea bargain in petitioner's case
provided an insufficient basis for movant to attack his
In arguing that appellate counsel was ineffective, movant
argues that, had appellate counsel investigated the case, counsel
would have realized that movant has been deprived of the right to
contract. As explained, however, such claim is frivolous. Movant
The court notes that movant was provided an interpreter at his
rearraignment, Cr. Doc. 85 at 3-4, at his hearing on motion to
withdraw guilty plea, Cr. Doc. 86 at 5-6, and for his meeting with
Special Trial Counsel in anticipation of his hearing on motion to
withdraw guilty plea, Cr. Doc. 66. Moreover, movant's primary counsel
represented to the court that she spoke fluent Spanish and was able to
discuss the Presentence Report with movant, and movant expressed no
disagreement with Trial Counsel's representations. Cr. Doc. 80 at 3-4.
identifies no other issue that he would have wished to preserve
via plea agreement had such agreement been negotiated. Thus,
movant has failed to establish that counsel's appellate
performance was deficient and that such performance was
The court discerns that, within Ground Two, movant wishes to
challenge the voluntariness of his guilty plea. As explained
such a claim is refuted by the record. Moreover,
to the extent movant's claim in Ground Two is distinct from
movant's claim of ineffective assistance of counsel during his
plea proceedings, such claim was addressed and dismissed as
frivolous on direct appeal. To the extent that movant intends to
argue in Ground Two that the court's application of the
sentencing guidelines was erroneous in light of his guidelines
range, such argument was also dismissed as frivolous on direct
appeal. Moreover, such arguments are generally cognizable only on
direct review. Movant provides no grounds to overcome that
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.
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 October 17, 2016.
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