Ortiz Alvarez v. USA

Filing 8

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. 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. (Ordered by Senior Judge John McBryde on 11/18/2021) (bdb)

Case 4:21-cv-01160-A Document 8 Filed 11/18/21

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VICTOR LEONEL ORTIZ ALVAREZ,

§
§

Movant,

§
§

vs.

§
§

UNITED STATES OF AMERICA,

§

NO. 4:21-CV-1160-A
(NO. 4:19-CR-032-A)

§

Respondent.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Victor Leonel Ortiz
Alvarez, movant, under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence by a person in federal custody. The court,
having considered the motion, the government's response, the
reply,

the record, and applicable authorities, finds that the

motion should be denied.
I.

Background
The record in the underlying criminal case reflects the
following:
On February 6, 2019, movant was charged in a one-count
information with conspiracy to possess with intent to distribute
50 grams or more of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.

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§ 846. CR Doc.' 19. On February 22, 2019, movant appeared before

the court with the intent to enter a plea of guilty without
benefit of a written plea agreement. CR Doc. 26. Movant and his
attorney signed a waiver of indictment, CR Doc. 27, and a
factual resume, which set forth the penalties movant faced,

the

elements of the offense, and the stipulated facts establishing
that movant had committed the offense. CR Doc. 28. Movant
testified under oath that: He understood that he should never
depend or rely upon any statement or promise by anyone as to
what penalty would be assessed against him and that his plea
must not be induced or prompted by any promises, mental
pressure, threats, force, or coercion; he had discussed with his
attorney how the sentencing guidelines might apply in his case;
the court would not be bound by the stipulated facts and could
take into account other facts; the guideline range could not be
determined until the presentence report ("PSR") had been
prepared; his term of imprisonment would be at least five years
and could be as much as forty years; he understood the elements
of the offense and he admitted that all of them existed; he had
read and understood the information; he had read and understood
the factual resume and understood everything in it; he was

1 The "CR Doc,_,, reference is to the number of the item on the docket in the underlying criminal case, No. 4:19CR-032-A.

2

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satisfied with his representation; no threats or promises had
been made to induce him to plead guilty; and, the stipulated
facts in the factual resume were true. CR Doc. 74.
The probation officer prepared the PSR, which reflected
that movant's base offense level was 38. CR Doc. 32,
received two-level adjustments for (1) importation,

1

26. He

(2)

maintaining a premises for manufacturing or distribution,

(3)

unlawful discharge into the environment of hazardous or toxic
substances, and (4) being an organizer and leader. Id. ,, 27-29,
32. He received a two-level and a one-level reduction for
acceptance of responsibility. Id. ,, 36, 37. Based on a total
offense level of 43 and a criminal history category of I, his
guideline range was life. However, the maximum statutorily
authorized sentence of 40 years reduced the guideline range to
480 months. Id. , 74. Movant filed objections, CR Doc. 52, and
the probation officer prepared an addendum to the PSR. CR Doc.
41.

The government filed a motion for downward departure based
on movant's substantial assistance to the government. CR Doc.
37. The court considered the motion at the sentencing hearing
and explained that movant had already been adequately rewarded
for his cooperation by not being charged with his true offense
conduct, which would have resulted in a life sentence. CR Doc.
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75. The court sentenced movant to a term of imprisonment of 480
months. CR Doc. 54. He appealed, CR Doc. 61, and his judgment
was affirmed. United States v. Alvarez, 821 F. App'x 305 (5th
Cir. 2020). He did not file a petition for writ of certiorari.
II.

Ground of the Motion
Movant asserts one ground in support of his motion. He says
that his guilty plea was unintelligent and involuntary as a
result of counsel's unfillable promise that he would receive a
sentence of ten years if he pleaded guilty. Doc.' 1 at PageID 3 4.
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. United States v. Frady, 456 U.S.
152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 23132

(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

2

The "Doc. _" reference is to the number of the item on the docket in this civil action.
The "PagelD _" reference is to the page number assigned by the court's electronic filing system and is used
because the typewritten page numbers on the form used by movant are not the actual page numbers of the document
and also because additional pages arc attached thereto.
3

4

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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, 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)
515, 517-18
B.

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

(5th Cir. 1978)).

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, 687

(1984); see also

Missouri v. Frye, 566 U.S. 133, 147 (2012).

"[Al

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).

6

(5th

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IV.
Analysis
Movant alleges that his attorney promised him that he would
receive a sentence of no more than ten years if he agreed to
plead guilty.' Doc. 1 at PageID 18. The allegation (assuming it
pertains to the offense charged) is unsupported 5 and contrary to
movant's testimony in open court. Any contention that movant's
plea was not knowing and voluntary is belied by the record.
"Solemn declarations in open court carry a strong presumption of
verity." Blackledge v. Allison, 431 U.S.

63,

74

(1977). His

factual resume is likewise entitled to the presumption. United
States v. Abreo,

30 F.3d 29, 32

Blackburn, 752 F.2d 1079, 1081

(5th Cir. 1994); Hobbs v.
(5th Cir. 1985). 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)
exact terms of the alleged promise,

(2)

the

exactly when, where, and

by whom the promise was made, and (3) the precise identity of

4 The document movant signed in support of the motion says that his attorney promised him "that if I pied guilty to
possession and attempted distribution and cooperated that I would get a sentence ofno more than ten years." Doc. 5
at Page!D 35. Of course, this is not the offense to which he pleaded gnilty.
5 The cou1t notes that the purported declarations signed by movant and his father are made "to the best of [their]
knowledge, information and belief." Doc. I at Pagc!D 21, Page!D 23; Doc. 5 at Page!D 35. Further, the declaration
of movant's father, who resides in Mexico, CR Doc. 75 at 23, does not state that it is made under penalty of pe1ju1y
under the laws of the United States. 28 U.S.C. § 1746. In any event, the declarations are conclusory and insufficient
to support a challenge to the validity of the plea.

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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 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 arraignment hearing. As noted, movant says that the alleged
promise related to a plea to possession and attempted
distribution. Doc. 5 at PageID 35. Even if the promise related
to the conspiracy charge, movant's father was not present when
the alleged conversation between movant and his counsel took
place. Doc. 1 at PageID 23. At best, the testimony of movant's
father is that he understood that counsel had a plan to get
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movant a ten-year sentence.' Id. Of course, an understanding that
there will be a lesser sentence, like an erroneous prediction of
a sentence, is insufficient to undermine a plea of guilty.
Harmason v. Smith, 888 F.2d 1527, 1531-32 (5th Cir. 1989);
United States v. Stumpf, 827 F.2d 1027, 1030 (5th Cir. 1987).
After the meetings described in the purported declarations,
movant testified in open court that no one had made any promise
to him to induce him to plead guilty. He clearly understood that
he faced a term of imprisonment of forty years. CR Doc. 74.
Once a guilty plea has been entered, all nonjurisdictional
defects in the proceedings against the defendant are waived.
United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008). A
guilty plea waives pre-plea ineffective assistance of counsel
unless the movant can show that he would not have pleaded guilty
but for counsel's deficient performance and that he would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); Cavitt, 550 F.3d at 441. Here, movant offers nothing but
his post hoc conclusory allegation that he would have gone to
trial, which is insufficient. Lee v. United States, 137 S. Ct.
1958, 1967 (2017). There is no contemporaneous evidence to
support the allegation.

6

The plan may well have been for the government to file a motion for downward departure, which it did.

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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 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
denial of a constitutional right.
SIGNED November 18, 2021.

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