Dolmuz-Carcamo v. United States of America DO NOT DOCKET IN 2:12CV333.documents should be filed in 2:11cr169-1
Filing
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MEMORANDUM OPINION AND ORDER. Dolmuz-Carcamo's 2 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 2:11cr169 (Defendant No. 1) is Denied. He is also Denied a Certificate of Appealability. (Signed by Judge John D. Rainey.) Parties notified. (yhausmann, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
OSMAR ANTONIO DOLMUZCARCAMO,
Defendant.
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Cr. No. C-11-169
(Ca. No. C-12-333)
MEMORANDUM OPINION AND ORDER
Pending before the Court is Osmar Antonio Dolmuz-Carcamo’s (“Dolmuz-Carcamo”)
motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and his memorandum
of law in support. D.E. 36, 36-1.1 The government responded to the motion and filed defense
counsel’s affidavit. D.E.48, 49. No reply was filed.
I. JURISDICTION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Dolmuz-Carcamo was arrested in January 2011 at the Falfurrias, Texas Border Patrol
Checkpoint. He was stopped for an immigration check when a drug dog alerted to his tractor-trailer.
D.E. 1. He was directed to secondary screening and consented to an X-ray of his trailer. Id. Agents
discovered 316 bundles of marijuana in a wooden crate in the trailer. Id. The marijuana weighed
approximately 6,096 pounds. Id. Dolmuz-Carcama was arrested. Id.
Dolmuz-Carcamo was appointed counsel after his arrest. D.E. 3. He sought bond, but after
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Docket entry numbers (D.E.) refer to the criminal case.
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a detention hearing, he was held without bail. See D.E. 6. Dolmuz-Carcamo was indicted and
charged with possession with intent to distribute more than 1,000 kilograms of marijuana
(approximately 2,648.8 kilograms) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). D.E.
8. He was arraigned within a week following his indictment. See Minute Entry February 23, 2011.
Dolmuz-Carcamo retained private counsel after arraignment. D.E. 13, 14. He proceeded to
trial on April 25, 2011. The morning of April 26, 2011, he advised the Court that he wished to plead
guilty, and rearraignment was held. D.E. 44. The Court conducted rearraignment as required by Rule
11 of the Federal Rules of Criminal Procedure. Additionally, because Dolmuz-Carcamo was a
permanent resident alien, the Court advised him that he was subject to deportation. Domuz-Carcamo
responded that he understood.2
The Probation Department prepared the Presentence Investigation Report (PSI). D.E. 21.
Probation calculated Dolmuz-Carcamo’s base level offense at 32 based upon 2,648.8 kilograms net
weight of marijuana found in his trailer. Id. at ¶ 14. Two points were subtracted for acceptance of
responsibility, resulting in a total offense level of 30. Id. at ¶¶ 19-23. Dolmuz-Carcamo had prior
criminal convictions. His criminal history points totaled 4, resulting in the application of criminal
history category III. Id. at ¶ 33. His sentencing range was 121-151 months, with a statutory
minimum sentence of 10 years. Id. at ¶¶ 44-45. No objections were filed to the PSI. D.E. 23.
At sentencing, defense counsel did not object to the PSI but did argue that DolmuzCarcamo’s criminal history over represented his danger to the community. The government urged
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11 THE COURT: Now, because you are a citizen of
12 another country, Nicaragua, and you are pleading guilty
13 to a felony offense, you will be subjected to being
14 deported. Do you understand that?
15 DEFENDANT DOLMUZ-CARCAMO: Yes, sir.
Id.
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a mid-level guideline sentence of 130-135 months. Id. at 8. Defense counsel argued for a low-end
guideline sentence. Id. at 5. The Court imposed a guideline sentence of 126 months in the Bureau
of Prisons, 5 years supervised release, and a $100 special assessment. Id. at 9-10. Dolmuz-Carcamo
did not appeal. The motion to vacate was received by the Clerk on October 29, 2012. D.E. 36. It is
timely.
III. MOVANT’S ALLEGATIONS
Dolmuz-Carcamo claims his counsel was ineffective on two grounds: 1) counsel failed to
advise him of the deportation consequences of his guilty plea, and 2) counsel failed to object to the
PSI and argue for sentencing considerations due to his immigration status.
The government maintians that Dolmuz-Carcamo’s motion is conclusory, but it did agree
that a hearing should be held on Dolmuz-Carcamo’s allegation that counsel failed to advise him of
the consquence of deportation arising from his guilty plea. D.E. 49 at 7-8. Thus, an evidentiary
hearing was held on June 18, 2013.
IV. ANALYSIS
A.
28 U.S.C. § 2255
There are four cognizable grounds upon which a federal prisoner may move to vacate, set
aside or correct his sentence: 1) constitutional issues, 2) challenges to the district court’s jurisdiction
to impose the sentence, 3) challenges to the length of a sentence in excess of the statutory maximum,
and 4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United
States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United
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States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam).
B.
Claims of Ineffective Assistance of Counsel
1. Standard for ineffective assistance of counsel
Generally, an ineffective assistance claim presented in a § 2255 motion is properly analyzed
under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). United
States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001). To prevail on a claim of ineffective assistance
of counsel, a movant must demonstrate that his counsel’s performance was both deficient and
prejudicial. Id. This means that a movant must show that counsel’s performance was outside the
broad range of what is considered reasonable assistance and that this deficient performance led to
an unfair and unreliable conviction and sentence. United States v. Dovalina, 262 F.3d 472, 474-75
(5th Cir. 2001). To show that his attorney’s performance at sentencing in a noncapital case was
prejudicial under Strickland, the movant must demonstrate that counsel’s error led to an increase in
the length of his imprisonment. Glover v. United States, 531 U.S. 198, 203 (2001); United States
v. Herrera, 412 F.3d 577, 581 (2005).
If the movant fails to prove one prong, it is not necessary to analyze the other. Armstead v.
Scott, 37 F.3d 202, 210 (5th Cir. 1994) (“A court need not address both components of the inquiry
if the defendant makes an insufficient showing on one”); Carter v. Johnson, 131 F.3d 452, 463 (5th
Cir. 1997) (“Failure to prove either deficient performance or actual prejudice is fatal to an
ineffective assistance claim.”).
2. Claim that counsel failed to advise him of deportation consequences of guilty plea
Dolmuz-Carcamo alleged in his § 2255 motion that trial counsel failed to advise him of the
deportation consequences that would arise from his guilty plea. D.E. 36 at 4. Counsel filed an
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affidavit stating that he and Dolmuz-Carcamo discussed deportation as a consequence of his
conviction numerous times during counsel’s representation of Dolmuz-Carcamo. At the evidentiary
hearing held on June 18, 2013, counsel again testified that deportation was a concern throughout his
representation of Dolmuz-Carcamo. They discussed that concern at the beginning of counsel’s
representation and it was a factor in Dolmuz-Carcamo’s decision to go to trial. After the first day
of trial and after hearing the testimony of several government witnesses, Dolmuz-Carcamo advised
counsel that he wished to change his plea to guilty. Counsel testified they discussed DolmuzCarcoma’s likely deportation after serving his sentence and discussed that his sentence would likely
be less severe if he pled guilty.
Dolmuz-Carcamo testified that counsel advised him of the deportation consequences of being
convicted of the drug trafficking offense with which he was charged. He did not recall further
conversations regarding deportation immediately before his guilty plea. He also recalled that the
Court advised him he was subject to deportation.
In 2010, the Supreme Court held that counsel who did not advise a lawful permanent resident
alien of his almost certain deportation if he was convicted of drug trafficking did not meet
professional standards pursuant to Strickland v. Washington 466 U.S. 668 (1984). Padilla v. United
States, 559 U.S. 356, 130 S.Ct. 1473, 1486 (2010). Here, the evidence reveals that counsel provided
that information to Dolmuz-Carcamo. The Court finds that Dolmuz-Carcamo was adequately warned
that his conviction for drug trafficking was likely to result in his deportation. No ineffective
assistance of counsel is shown.3
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During the hearing, it became apparent that Dolmuz-Carcamo’s real concern was that his permanent residency status
was obtained through a request for political asylum. Although counsel had been made aware of that status, counsel and
Dolmuz-Carcamo did not discuss whether or how Dolmuz-Carcamo would be able to address his concerns about
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3.
Counsel’s alleged failures at sentencing
Dolmuz-Carcamo further claims that counsel should have objected to the PSI and should
have argued for sentencing considerations based upon his immigration status. Dolmuz-Carcamo does
not state on what basis counsel should have objected to the PSI.
As a result of Dolmuz-Carcamo’s failure to state any facts in support of this claim or to state
in what way he was prejudiced, this claim is conclusory. Conclusory allegations on critical issues
in a § 2255 proceeding are insufficient to raise a constitutional issue. United States v. Woods, 870
F.2d 285, 288 n. 3 (5th Cir. 1989); see also United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)
(Failure of movant to state specific facts “is insufficient to state a constitutional claim.”).
Dolmuz-Carcamo also claims that counsel should have argued for sentencing consideration
based upon his immigration status. The Fifth Circuit has previously rejected such claims. United
States v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993) (“Collateral consequences, such as the likelihood
of deportation or ineligibility for more lenient conditions of imprisonment, that an alien may incur
following a federal conviction are not a basis for downward departure.”). Additionally, the current
sentencing guidelines continue to state that race, sex, national origin, as well as other personal
factors “are not relevant” in the determination of a sentence. U.S.S.G. 5H1.10. Although national
origin and alienage status are not the same, the Sentencing Guidelines do not recognize alienage as
a basis for departure. Accordingly, Dolmuz-Carcamo cannot show prejudice from counsel’s failure
returning to Nicaragua before he was deported. Padilla does not require these more involved questions of immigration
law to be handled by criminal defense lawyers. See Padilla, 130 S.Ct. at 1483 (“Immigration law can be complex, and
it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state
or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which
the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such
cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by
Justice ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration consequences.”).
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to make this particular argument because he cannot establish that his sentence would have been
different had counsel made the argument. See Carter, 131 F.3d at 463 (“Failure to prove either
deficient performance or actual prejudice is fatal to an ineffective assistance claim.”).
During the hearing, Dolmuz-Carcamo raised other claims of ineffective assistance of counsel
during his testimony. Those claims are not timely and may not be considered by this Court.4
V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c)(1)(A). Although Dolmuz-Carcamo has not yet filed a notice of appeal, the § 2255 Rules
instruct this Court to “issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rule 11, § 2255 Rules.
A Certificate of Appealability (COA) “may issue. . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA
determination under § 2253(c) requires an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
To warrant a grant of the certificate as to claims denied on their merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires
a § 2255 movant to demonstrate that reasonable jurists could debate whether the motion should have
4. Dolmuz-Carcamo’s conviction became final at the time of expiration of the time to file his notice of appeal,
14 days after judgment was entered on the docket, or on November 25, 2011. See Fed. R. App. P. 4(b)(1)(A). His motion
to vacate had to be filed on or before November 25, 2012. His original motion was timely filed, but the claims he raised
at the hearing on June 18, 2013, do not relate back to his original motion and are outside the one year limitation period.
See 28 U.S.C. § 2255(f).
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been resolved differently, or that the issues presented deserved encouragement to proceed further.
United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon Slack, 529 U.S. at 483-84).
As to claims that the district court rejects solely on procedural grounds, the movant must
show both that “jurists of reasons would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484 (emphasis added).
Based on the above standards, the Court concludes that Dolmuz-Carcamo is not entitled to
a COA on any of his claims. That is, reasonable jurists could not debate the Court’s resolution of
his claims, nor do these issues deserve encouragement to proceed. See Jones, 287 F.3d at 329.
VI. CONCLUSION
For the foregoing reasons, Dolmuz-Carcamo’s motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (D.E.36) is DENIED. He is also DENIED a Certificate of
Appealability.
It is so ORDERED.
SIGNED on this 1st day of July, 2013.
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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