Santa Cruz v. USA

Filing 7

Memorandum Opinion and Order: The court ORDERS that movant's motion under 28 U.S.C. § 2255 be, and is hereby, dismissed. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 10/31/2017) (edm)

U.S. DISTRICT COURT
NORTIIERN DISTRICT OF TEXAS

FILED

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IN THE UNITED STATES DISTRICT OURT
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NORTHERN DISTRICT OF TEXAS
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FORT WORTH DIVISION
CLERK., U.S. DISTRlCT COURT

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Victor Herrera Santa
Cruz

("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. 4:14-CR-020-A, styled "United States of America v. Victor
Herrera Santa Cruz, et al.," the court has concluded that the
motion must be dismissed.
I.

Background
Information contained in the record of the underlying
criminal case discloses the following:
On February 2, 2014, movant was named in a one-count
indictment charging him and a co-defendant with being illegal
aliens in possession of a firearm,

in violation of 18 U.S.C.

§

922 (g) (5) . CR Doc . 1 14. Movant retained an attorney to represent
him. CR Docs. 4, 7, 11, and 19.
On March 28, 2014, movant pleaded guilty without benefit of
a plea agreement. CR Doc. 27. Movant and his counsel signed a
factual resume, which was filed, outlining the elements of the
offense, the stipulated facts that proved movant's guilt, and the
maximum penalty of ten years' imprisonment. CR Doc. 28. 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
understood the meaning of everything in it and the stipulated
facts were true. The court found that movant was fully competent
and capable of entering an informed plea and that his plea of
guilty was a knowing an voluntary plea, supported by an

'The "CR Doc. _"reference is to the number of the item on the docket in the underlying
criminal case, No. 4: 14-CR-020-A.
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independent basis in fact containing each of the essential
elements of the offense, and that such plea did not result from
force,

threats, or promises. CR Doc. 58.

On August 1, 2014, the court sentenced movant to a term of
imprisonment of 90 months, to be followed by a three-year term of
supervised release. CR Doc. 55. Movant appealed and the judgment
was affirmed by order filed July 16, 2015. CR Doc. 66. United
States v. Santa Cruz, 609 F. App'x 265, 266

(5th Cir. 2015).

Movant did not seek rehearing or timely file a petition for writ
of certiorari. He first sought certiorari review in March and
June 2017 and the United States Supreme Court informed him that
his papers were out of time. CR Doc. 67.
II.
Grounds of the Motion
Movant asserts two grounds in support of his motion. First,
he alleges that he received a "[m]anifestly excessive sentence
that had a blantant [sic] disregard to 3553 factors.• Doc.

2

5. Second, he says:
The court appointed attorney was ineffective in his
assistance by asserting vigorously that the 3553
sentencing factors were ignored as was determined by
Apprendi v New Jersey.

'The "Doc.

"reference is to the number of the item on the docket in this civil action.
3

1 at

Furthermore, the counsel promised that the sentence was
going to be 46 months imprisonment if the defendant did
not go to trial.
Doc. 1 at 6.
III.
Applicable Legal Principles
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, 937 F.2d 228, 231-32
(5th Cir. 1991).

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.
4

Davis v. United States, 417 U.S. 333, 345

(1974); United States

v. Placente, 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.

Limitations
A one-year limitation period applies to the filing of a

motion to vacate, set aside, or correct sentence. The limitation
period runs from the latest of
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the
claims presented could have been discovered through the
exercise of due diligence.
28
C.

u.s.c.

§

2255 (f).

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
5

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

(1984); see also

Missouri v. Frye, 566 U.S. 133, 132 S. Ct. 1399, 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, 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).

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
Cir. 2000).
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(5th

IV.
Analysis
A.

The Motion is Untimely
Movant does not address the timeliness of his motion.

Clearly,

§

2255(f) (1) is the only applicable provision. Movant

did not timely petition the Supreme Court for a writ of
certiorari; therefore, his judgment became final on October 14,
2015. Clay v. United States, 537 U.S. 522, 525

(2003) (for the

purpose of starting the clock on the one-year time limit for a
motion under 28 U.S.C.

§

2255, a judgment of conviction becomes

final when the 90 day time period expires for the filing of a
petition for certiorari) . He did not file the motion under
consideration until September 2017, well after the time for doing
so had expired. Thus, the motion must be dismissed as timebarred. United States v. Riggs,

314 F.3d 796, 800

(5th Cir.

2 0 02) .
B.

The Motion is Without Merit
Even if the motion had been timely filed, movant could not

prevail. His first ground was raised on appeal and cannot be
considered here. United States v. Kalish,

780 F.2d 506, 508

(5th

Cir. 1986); Moore, 598 F.2d at 441.
Movant's second ground is conclusory and wholly unsupported.

7

The first sentence does not make any sense. Movant did not have a
court-appointed attorney, but in any event, it is difficult to
understand what exactly he is arguing. Movant's counsel did
vigorously argue on his behalf at sentencing.
As for the second sentence, movant has failed to present the
court with anything that would cause the court to conclude that
any aspect of this allegation 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
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 (5th 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 (5th Cir. 1985). Movant's guilty plea was knowing and

8

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 his contention that is 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
no such thing occurred.

v.
Order
The court ORDERS that movant's motion under 28 U.S.C.

§

2255

be, and is hereby, dismissed.
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.
§

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

9

denial of a constitutional right.
SIGNED October 31, 2017.

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Judge

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