Cadena v. USA

Filing 7

Memorandum Opinion and Order: The court ORDERS that all relief sought by movant in his motion under 28 U.S.C. § 2255 be, and is hereby, denied. (Ordered by Judge John McBryde on 9/5/2017) (edm)

IN

MICHAEL CADENA,

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§

Movant,

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§

VS.

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UNITED STATES OF AMERICA,

NO. 4:17-CV-575-A
(NO. 4:14-CR-163-A)

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§

Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Michael Cadena
("movant") under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence. After having considered such motion, its
supporting amended memorandum, the government's response, and
pertinent parts of the record in Case No. 4:14-CR-163-A, styled
"United States of America v. Narcisco Rodriguez, 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 August 13, 2014, movant was named in a one-count
indictment charging him and Narcisco Rodriguez with knowingly and
intentionally combining, conspiring, confederating, and agreeing
to engage in conduct in violation of 21 U.S.C.

§

841(a) (1) and

(b) (1) (B), namely to possess with intent to distribute more than
50 grams of a mixture and substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C.

§

846. CR

Doc.' 1. Movant was arrested on November 16, 2014, and on
November 17, 2014, the Federal Public Defender was appointed to
represent him. CR Doc. unnumbered item following docket entry 6;
CR Doc. 7, 10.
On January 9, 2015, movant appeared before the court with
the intent to enter a plea of guilty to the offense charged
without benefit of a plea agreement. 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; 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

'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4:14-CR-163-A.
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understood the meaning of everything in it and the stipulated
facts were true. CR Doc. 70.
On April 24, 2015, movant was sentenced to a term of
imprisonment of 150 months to be followed by a four-year term of
supervised release. CR Doc. 71 at 13-14. Movant appealed and his
sentence was affirmed. CR Doc. 83, 84; United States v. Cadena,
642 F. App'x 306

(5th Cir. 2016). On October 3, 2016,

the United

States Supreme Court denied movant's petition for writ of
certiorari. CR Doc. 88; Cadena v. United States, 137 S. Ct. 128
(2016).
II.

Grounds of the Motion
Movant urges four grounds in support of his motion. The
first three allege ineffective assistance of counsel. The fourth
urges that movant's Fifth and Eighth Amendment rights were denied
when he received a sentence that was substantially unreasonable
and greater than necessary to achieve sentencing goals under 18

u.s.c.

2

§

3553. Doc.' 1 at 4,

The "Doc.

~

15.

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

Standards of Review
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,
(5th Cir. 1991).

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
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. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

Further, i f

issues •are raised and considered on direct appeal, a defendant
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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.
Strickland v. Washington, 466 U.S. 668, 687
Missouri v. Frye, 566
"[A]

u.s.

133, 132

s.

(1984); see also

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."
466

u.s.

Strickland,

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)

(quoting Strickland, 466 U.S. at 686).
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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. Simply making conclusory allegations
of deficient performance and prejudice is not sufficient to meet
the Strickland test. Miller v. Johnson, 200 F.3d 274, 282

(5th

Cir. 2000).

IV.
Analysis
In support of his grounds regarding ineffective assistance
of counsel, movant argues that his counsel inadequately
investigated the underlying facts, caused him to enter an
involuntary and unknowing plea agreement, and induced him to
plead guilty by repeatedly explaining that movant would receive a
sentence of five to seven years. The motion is unsupported by any
evidence. Moreover, the motion depends entirely on conclusory
allegations, such as the contention that had movant gone to
trial, he would have received a much lower sentence.
Movant has failed to present the court with anything that
would cause the court to conclude that any aspect of his
ineffective assistance grounds 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
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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 (5'h 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 (5'h Cir. 1985). Movant's guilty plea was knowing and
voluntary and made with sufficient awareness of the relevant
circumstances and likely consequences. Bradshaw v. Stumpf, 545
U.S. 175, 183

(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
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no such thing occurred. The court specifically gave movant notice
that he faced a sentence of at least five years and that the term
of imprisonment could be as much as 40 years. CR Doc. 70 at 23.
Movant stated under oath that he understood the penalties to
which he would be subjected if he plead guilty. Id. at 24.
To the extent movant alleges that his counsel failed to
conduct a proper investigation, his claim is wholly conclusory
and unsupported. The record reflects that his counsel pursued
objections to the presentence report and withdrew the objection
as to the safety valve with movant's approval. CR Doc. 43; CR
Doc. 47; CR Doc. 71. Although movant wishes that the facts were
different, the court adopted the fact findings set forth in the
presentence report and addendum, which belie the allegations he
now makes. CR Doc. 71 at 8.
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.
As for movant's final ground, that his sentence was
substantively unreasonable and greater than necessary to achieve
the goals of sentencing, shades of it were urged on direct
appeal. United States v. Cadena,

642 F. App'x at 307-08. To the

extent he now embellishes his argument, he should and could have
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addressed these issues on direct appeal and cannot pursue them in
this proceeding. See Davis, 417 U.S. at 345. But, in any event,
the record belies movant's claims regarding his sentencing. The
court determined that the sentence it imposed adequately and
appropriately addressed all of the factors the court should
consider in sentencing under 18 U.S.C.

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3553(a). CR Doc. 71 at

13. Movant has no evidence to the contrary.

v.
Order
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 11(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,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED September 5, 2017.

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