Palacios v. United States of America

Filing 10

MEMORANDUM OPINION and ORDER: The court ORDERS that all relief sought by movant through Ground One, Ground Two, and Ground Three of the motion under 28 U.S.C. § 2255 the court received from movant on November 18, 2016, be, and is hereby, denied, and that a hearing is to be conducted as to the relief sought by movant pursuant to Ground Four of such motion. (Ordered by Judge John McBryde on 1/31/2017) (tln)

U.S,,
NORTHERN

IN THE UNITED STATES DISTRICT OURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CLERK, U.S. DISTRICT CUURT

GLORIA ANN PALACIOS,

BY------~~----------

§

Deputy

§
§
§

Movant,

vs.

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§
§

UNITED STATES OF AMERICA,

NO. 4:16-CV-1060-A
(NO. 4:15-CR-209-A)

§
§

Respondent.

MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of Gloria Ann Palacios
("movant") under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence by a person in federal custody.

After having

considered such motion, its supporting memorandum, the
government's response, and pertinent parts of the record in Case
No. 4:15-CR-209-A, styled "United States of America v. Gloria Ann
Palacios," the court has concluded that the first three grounds
of the motion are meritless and should be denied, and that the
fourth ground, while probably without merit, requires a hearing
before a ruling can be made thereon.

I.

Background
Information contained in the record of the underlying
criminal case discloses the following:
On September 1, 2015, movant was named in a one-count
indictment charging her with conspiracy to possess with intent to
distribute a controlled substance (50 grams or more of a mixture
and substance containing a detectable amount of methamphetamine),
in violation of 21 U.S.C.

§

846. CR Doc. 1 13. On October 16,

2016, movant appeared for rearraignment and pleaded guilty to the
charge made by the indictment. CR Doc. 20. Movant was placed
under oath and, among other things, stated that she understood
that she was waiving her right to trial; she was satisfied with
her attorney and did not have any complaint whatsoever; her plea
was based on actual guilt and was made knowingly, voluntarily,
and without pressure or coercion; she did not have any deal,
understanding, or agreement and that no one had made any promise
to her to induce her to enter a guilty plea; she understood the
role of the sentencing guidelines and knew that the court had the
exclusive authority to calculate her guideline range after it
reviewed the PSR and considered any objections; the guideline

1

The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: 15-CR-209-A.
2

calculation was not limited to the facts stipulated by the
parties and the court could take into account facts not mentioned
in the stipulated facts and impose a sentence more severe or less
severe than the sentence called for by the guidelines; she would
not be permitted to withdraw her plea if her sentence was higher
than she expected; she committed each element of the offense
charged; and, she understood the legal meaning of everything in
the factual resume and the facts stated therein were true and
correct. The court specifically explained that movant was subject
to a term of imprisonment of at least 5 years and that it could
be as much as 40 years, which movant stated she understood. The
court determined that movant's plea was knowing and voluntary and
that she was competent to enter into it. CR Doc. 68.
The PSR held movant accountable for 11 kilograms of
methamphetamine actual, which corresponded to a base offense
level of 38. CR Doc. 25, ,, 20, 30. She received an additional
four points for importation of methamphetamine from Mexico and
for aggravating role. CR Doc. 25, ,, 31, 32. And, she received an
adjustment for role in the offense. CR Doc. 25, , 34. She did not
receive an adjustment for acceptance of responsibility. CR Doc.
25, , 38. Her total offense level of 44 was treated as 43 as
prescribed by the guidelines. CR Doc. 25, , 39. Movant's criminal
history category was V. CR Doc. 25, , 56. Her guideline
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imprisonment range was life, but the statutory maximum sentence
was 40 years. CR Doc. 25,

~

104.

Movant filed objections to the PSR, which were addressed in
three addenda to the PSR. CR Doc. 29; CR Docs. 32, 34, 38. At
sentencing on February 5, 2016, movant's attorney confirmed that
he and his client had received in a timely manner the PSR and
three addenda and read and discussed those items. CR Doc. 69 at
5-6. Movant wanted to pursue all of her objections and presented
testimony with regard to adjustment in the role in the offense.
CR Doc. 69 at 6-13. The court overruled the objections and
adopted the facts and conclusions set forth in the PSR as
modified by any expressed from the bench, stating that movant's
total offense level was 43, with a criminal history category of
V, and an imprisonment range of 480 months. CR Doc. 69 at 18-20.
The court heard statements of movant's son and aunt and
allocution from movant, who simply said that she was usorry for
everything.n CR Doc. 69 at 20-24.
The court imposed a sentence of 480 months and notified
movant of her right to appeal, including the right to have the
clerk file a notice of appeal for her if she were to specifically
request it. CR Doc. 69 at 24-26. Movant and her attorney signed
the form outlining her rights regarding appeal, but movant did
not request that a notice of appeal be filed. CR Doc. 69 at 26.
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The judgment of conviction and sentence was signed and entered on
February 5, 2016. CR Doc. 44.
On February 26, 2016, movant filed a pro se notice of appeal
and included a letter she wrote to her attorney stating that she
would like to immediately terminate their relationship and felt
compelled to file a letter of termination and motion to appeal,
hoping that an attorney could be appointed for her. CR Doc. 46.
By order signed March 1, 2016, the court reminded movant that she
continued to be represented by Mark F. Fernandez ("Fernandez"),
who had not filed a motion to withdraw. CR Doc. 49.

By order of

May 18, 2016, the Fifth Circuit remanded the case to the district
court to determine whether movant had demonstrated excusable
neglect or good cause to grant her an additional thirty days in
which to perfect appeal. CR Doc. 54. By separate order, the Fifth
Circuit granted Fernandez's motion to withdraw as movant's
counsel. CR Doc. 55.
By order signed May 19, 2016, the court ordered the
government and movant each to file a document providing whatever
information each had that would bear upon the issue of whether
the late filing by movant of a notice of appeal was due to
excusable neglect or good cause. CR Doc. 56. By order signed June
28, 2016, the court noted that although it had received a
response from the government, movant had not provided any further
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information regarding the timeliness of her appeal, and for
reasons expressed in the order determined that the untimely
filing of movant's notice of appeal was not due to excusable
neglect or good cause. CR Doc. 59. In particular, the court noted
that movant had never contended that she requested her attorney
to file a notice of appeal and that he failed to do so. Rather,
the letter attached to her untimely notice of appeal reflected
that movant terminated the relationship based on her
dissatisfaction with Fernandez's services and his apparent
disinterest in her case. In sum, she provided no evidence to
support a contention that she was denied the right to appeal due
to ineffective assistance of counsel. Id.
A month later, movant filed a motion for out of time appeal.
CR Doc. 60. The court denied the motion by order signed August
11, 2016. CR Doc. 61. The Fifth Circuit dismissed movant's appeal

due to its untimeliness. CR Doc. 63.
II.
Grounds of the Motion
Movant urges four grounds in support of her motion, worded
as follows:
GROUND ONE: Ineffective Assistance of Counsel at
Pretrial Stage, When Counsel failed to Adequate Explain

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The Use Of Relevant Conduct Prior To Her Entering A
Guilty Plea.
Doc. 2 1 at 4.
GROUND TWO: Counsel Rendered Ineffective Assistance of
Counsel At Sentencing, When He Failed to Object To
Inappropriately Applied Enhancements.
Doc. 1 at 5.
GROUND THREE: Counsel for The Petitioner Rendered
Ineffective Counsel While He Was Representing Palacios
He Was Taking Money and Property From Her Co-Defendant
Pancho For His Case, Before Absconding.
Doc. 1 at 7.
GROUND FOUR: Counsel Failed To File A Direct Appeal
When Requested.
Doc. 1 at 8.
III.
Applicable 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.
152, 164-165 (1982)
(5th Cir. 1991).

i

United States v. Frady, 456 U.S.

United States v. Shaid, 937 F.2d 228, 231-32

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

2

The "Doc.

" reference is to the number of the item on the docket in this civil action.
7

the first time on collateral review without showing both "cause"
for his 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
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}; United States
v. Piacente, 81 F.3d 555, 558 (5th cir. 1996}.

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}

Moore v. United States, 598 F.2d 439, 441

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

517-18 (5th Cir. 1978}}.
B.

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.
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Strickland v. Washington/ 466 U.S. 668
Missouri v. Frye/ 566 U.S. ___

1

1

687 {1984); see also

132 S. Ct. 1399

1

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

1

112 {2011)

I

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

{quoting Strickland/ 466 U.S. at 686).

1

189 {2011)

Judicial scrutiny of this

type of claim must be highly deferential and the defendant must
overcome a strong presumption that his counsel

1

S

conduct falls

within the wide range of reasonable professional assistance.
Strickland/ 466 U.S. at 689. Simply making conclusory allegations
of deficient performance and prejudice is not sufficient to meet
the Strickland test. Miller v. Johnson/ 200 F.3d 274
Cir. 2000).

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1

282 {5th

IV.

Analysis
A.

The First Ground
In her first ground, movant alleges that Fernandez failed to

adequately explain the use of relevant conduct in sentencing
before she entered her guilty plea. As supporting "facts," she
says that Fernandez "effectively coerced her into pleading guilty
by intentionally failing to explain how relevant conduct would
apply at her sentencing." Doc. 1 at 4. In her memorandum, she
says that Fernandez failed to "provide an accurate sentencing
range" before she pleaded guilty. Doc. 1 at 23. Yet, at her
rearraignment, movant testified that she had no complaints about
Fernandez; she did not have any deal, understanding or agreement
and no one had made her any promise or assurance; she understood
the role of the guidelines and had discussed them with Fernandez;
she knew the court had the exclusive authority to determine the
guideline range and that its calculation was not limited to the
stipulated facts; and, her sentence would fall within the
statutory range of 5 to 40 years. CR Doc. 68. Her solemn
declarations in open court carry a strong presumption of verity.
United States v. Cervantes, 132 F.3d 1106, 1110

(sth

Cir. 1998).

Movant has not offered any evidence to support her conclusory

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allegation that she was not made aware of her potential
sentencing range before entering a plea of guilty.
B.

The Second Ground
In her second ground, movant makes the conclusory allegation

that Fernandez failed to object to all the guideline enhancements
and then failed to adequately argue the alternative. Doc. 1 at 5.
In her memorandum, she refers to enhancements under USSG
2Dl.1 (b) (5) (A), 2D1.1 (b) (15)

(C),

§§

and 3B1.1 (c) . Doc. 1 at 26. She

then proceeds to argue the facts relevant to the enhancements.
However, a motion under

§

2255 cannot be used to raise

misapplications of the sentencing guidelines. United States v.
Williamson, 183 F.3d 458, 462

(sth

Cir. 1999). In any event, the

record reflects that movant did not suffer any harm of
constitutional magnitude. The probation officer agreed with her
objection to the enhancement under USSG
Doc. 34. The enhancement under USSG

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2D1.1(b) (15) (C). CR

2D1.1(b) (5) did not require

§

that movant had knowledge of importation of the methamphetamine.
United States v. Serfass, 684 F.3d 548, 552

(sth

Cir. 2012). And,

the record establishes that movant had such knowledge even if it
was required. Movant stipulated in the factual resume that she
traveled to Mexico to obtain narcotics to smuggle into the United
States for distribution. CR Doc. 23. Finally, her attorney did
object to the enhancement under USSG
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§

3B1.1(c). CR Docs. 29, 36.

In addition, he presented testimony and argument in support of
the objection at sentencing. CR Doc. 69 at 9-18. Counsel cannot
be faulted for the lack of success of his objection. Youngblood
v. Maggio, 696 F.2d 407, 410 (sth Cir. 1983). Movant's fanciful
surmise that her counsel was ineffective does not constitute a
basis for habeas relief. Id.
C.

The Third Ground
In her third ground, movant alleges that Fernandez had a

conflict of interest because he was taking money from a codefendant at the time he was representing her. Doc. 1 at 7, 35.
The record reflects that movant was the only defendant; there was
no co-defendant in the underlying criminal action. Moreover,
there is no evidence to support movant's bald allegations of a
conflict of interest. See Perillo v. Johnson, 205 F.3d 775 (5th
Cir. 2000) (explaining actual conflict of interest and the showing
required) . Movant stated in open court that she was pleading
guilty because she was guilty. Again, she cannot now refute her
solemn declarations made at rearraignment. Cervantes, 132 F.3d at
1110.
D.

The Fourth Ground
Finally, movant says that she requested her attorney to file

a notice of appeal and he failed to do so. That matter was
explored when movant attempted to file an out-of-time appeal.
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The court tentatively has concluded that movant's fourth ground
is without merit, but has decided that the court should conduct a
hearing so that movant will have an opportunity to offer any
evidence she might have in support of that ground.

A separate

order scheduling the hearing and appointing an attorney to
represent movant in connection with the hearing is being issued.

v.
Order
For the reasons stated above,
The court ORDERS that all relief sought by movant through
Ground One, Ground Two, and Ground Three of the motion under
28 U.S.C.

§

2255 the court received from movant on November 18,

2016, be, and is hereby, denied, and that a hearing is to be
conducted as to the relief sought by movant pursuant to Ground
Four of such motion.
SIGNED January 31, 2017.

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