Martinez-Duque v. UNITED STATES OF AMERICA
Filing
3
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:14cr629 (Defendant No. 1) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
May 05, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HERCULANO MARTINEZ-DUQUE,
§
§
§
§
§
§
§
§
§
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0594
(Criminal No. H-14-629-01)
MEMORANDUM OPINION AND ORDER
Petitioner,
Under 28 U.S.C.
a
No.
Person
45) . 1
in
§
Herculano Martinez-Duque,
has
filed
a
Motion
2255 to Vacate, Set Aside, or Correct Sentence By
Federal
Custody
( "§
2255
Motion")
(Docket
Entry
The United States has filed a Response to Motion for
Relief Under 28 U.S. C.
§
2255 and Motion for Summary Judgment
(Docket Entry No. 51).
On January 30,
2015,
petitioner pleaded guilty to illegal
reentry by a previously deported alien after a felony conviction in
violation of 8 U.S.C.
§§
1326(a) and (b) (2); and on April 16, 2015,
petitioner was sentenced within the advisory Sentencing Guideline
range to 57 months in prison and three years of supervised release
(Judgment in a Criminal Case, Docket Entry No. 27).
2016,
petitioner's
sentence
was
affirmed
on
On January 6,
appeal
(Judgment,
United States Court of Appeals, Docket Entry No. 37).
1
All docket entry references are to Criminal No. H-14-629.
In his
§
2255
Motion petitioner alleges
that
his
trial
counsel provided ineffective assistance by promising petitioner
that he would receive a sentence of 36 months in custody if he
pleaded guilty and that the government engaged in misconduct by
falsely stating that petitioner would be sentenced to 36 months in
custody if he pleaded guilty.
At his
Rearraignment on January 30,
2015,
the
following
colloquy occurred between the court and petitioner.
THE COURT:
Would you state your name, sir?
MARTINEZ-DUQUE:
Herculano Martinez-Duque.
THE COURT:
I understand you wish to plead guilty to the
charge of illegal re-entry after deportation
in violation of Title 8, United States Code,
Section 1326(a) and (b).
Is that correct?
MARTINEZ-DUQUE:
Yes, sir.
THE CLERK:
Do you solemnly swear that the testimony
that you're about to give in the case now
before the court shall be the truth, the
whole truth, and nothing but the truth so
help you God?
MARTINEZ-DUQUE:
Yes.
THE COURT:
Now,
both of you will please listen
carefully. Before I can accept your guilty
pleas, I must ask each of you a number of
questions.
It is very important that you
listen carefully to all of my questions, and
that you answer all of my questions
truthfully and completely,
for several
reasons.
-2-
First, since you are now under oath, if you
give an untrue answer to a question, you
could be charged with a separate crime of
perjury.
Do each of you understand that?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
Also, before I can accept your guilty plea,
I must make a number of findings.
My
findings are based on your answers to my
questions.
In order for my findings to be
correct, it is therefore necessary that all
of your answers to my questions be truthful,
and complete.
Mr. Martinez, do you understand that?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
Will each of you agree with me this morning
that if you do not understand anything that
I say, you will stop and ask me to repeat or
explain whatever you do not understand?
Mr. Martinez, will you agree to do that?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
Also each of you may stop at any time and
speak with your attorney.
You do not need
anyone's permission to speak with your
attorney.
THE COURT:
How many times have you spoken with your
attorney about this case?
MARTINEZ-DUQUE:
Twice.
-3-
THE COURT:
MARTINEZ-DUQUE:
Has your attorney discussed with you the
charge against you and what the government
would have to prove to establish your guilt?
Yes.
THE COURT:
Has your attorney reviewed with you the
evidence that the government has against
you?
MARTINEZ-DUQUE:
Yes.
THE COURT:
Has she discussed with you how the Federal
Advisory Sentencing Guidelines might apply
in your case?
MARTINEZ-DUQUE:
Yes.
THE COURT:
Has your attorney explained to you that you
will be deported after you have served your
sentence?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
Has your attorney
questions?
MARTINEZ-DUQUE:
Yes.
THE COURT:
Has she done everything that you have asked
her to do?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
Are you fully satisfied with the advice and
counsel that your attorney has provided you?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
The offenses that you're pleading guilty to
are felonies.
That means each of you will
be deported after you have served your
sentence. If you plead guilty, each of you
faces a maximum sentence of 2 0 years in
prison, and a fine of $250,000, and three
years of supervised release, and a $100
special assessment.
answered
all
of your
Yes.
-4-
Mr. Martinez, do you understand that?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
No determination has been made about
what either of your sentences will be.
If
I accept your guilty pleas, a probation
officer
will
interview
each
of
you,
investigate the facts of the case, and
prepare a presentence investigation report.
Your attorney will read the report to you in
Spanish before your sentencing. You or the
government may file objections to the
presentence report.
At the time of your
sentencing, I will rule on any objections to
the report, and I will then determine your
advisory guideline range and your sentence.
What each of you needs to understand today
is that this process of determining your
sentence has not yet begun.
That means no
one knows that advisory guideline range the
probation officer will recommend, or what
advisory guideline range I will find to be
applicable, or what sentence I will impose.
Mr. Martinez, do you understand that?
MARTINEZ-DUQUE:
Yes, sir.
THE COURT:
If the sentence that I impose is greater
than the sentence that you now expect or
greater
than
the
sentence
that
your
attorney, or anyone else may have predicted,
you will be bound by your guilty plea today
regardless of your sentence.
You
and
are
Mr.
MARTINEZ-DUQUE:
will not be allowed to change your mind
withdraw your guilty plea because you
not satisfied with your sentence.
Martinez, do you understand that?
Yes, sir.
-5-
THE COURT:
. Mr. Martinez, do you have any plea
agreement with the United States Government
in connection with your plea?
MARTINEZ-DUQUE:
No.
THE COURT:
Has the United States government made any
promises to you in connection with your
guilty plea?
MARTINEZ-DUQUE:
No.
THE COURT:
Has anyone threatened you, or forced you to
plead guilty?
MARTINEZ-DUQUE:
No.
THE COURT:
Has anyone promised you what sentence you
will receive if you plead guilty?
MARTINEZ-DUQUE:
No.
THE COURT:
How do you plead to the offense charged
against you, guilty or not guilty?
MARTINEZ-DUQUE:
Guilty.
THE COURT:
Counsel, do you believe that any other
advice of rights is required before I can
accept your client's plea?
MS. DOUENAT:
No, Your Honor.
THE COURT:
It is the finding of the court in the
United States versus Martinez-Duque
that each defendant is fully competent and
capable of entering an informed plea, and
that each defendant's plea of guilty is a
knowing and voluntary plea supported by an
independent basis in fact establishing each
of the essential elements of the offense.
-6-
Transcript
of
January
30,
2015,
Re-arraignment,
Docket
No. 33, p. 3 lines 12-19, p. 4 lines 10-15 & 17 top.
Entry
6 line 1,
p. 7 line 11 to p. 8 line 12, p. 11 line 23 to p. 12 line 5, p. 12
line 18 to p. 13 line 11, p. 13 lines 15-24, p. 14 lines 12-25,
p. 16 line 20 top. 17 line 1, and p. 20 lines 7-13.
The sworn testimony of petitioner directly contradicts the
claims
in his
April 16,
2015,
§
2255 Motion.
Moreover,
at his
sentencing on
petitioner made no mention of any promise of a
36-month sentence made by his own counsel or by counsel for the
government; nor did he express any surprise at being sentenced to
57
months
in
Sentencing,
custody.
See
Docket Entry No.
Transcript
31,
p.
of
April
2 line 10 to p.
16,
2015,
4 line 6.
Because the record directly contradicts petitioner's claims, he has
failed to show that his trial counsel was ineffective or that trial
counsel's
Likewise,
representation prejudiced petitioner.
record establishes that counsel
the
for the United States made no
promises to petitioner.
For the reasons stated above the Motion for Summary Judgment
of
the
United
States
(Docket
Entry
Martinez-Duque's Motion Under 28
No.
U.S.C.
51)
§
2255
is
GRANTED;
and
to Vacate,
Set
Aside, or Correct Sentence By a Person in Federal Custody (Docket
Entry No. 45) is DISMISSED WITH PREJUDICE.
The Clerk of Court is ORDERED to provide a copy of this
Memorandum Opinion and Order to Herculano Martinez-Duque and to the
-7-
United States Attorney for the Southern District of Texas, and to
file
a
copy
of
this
Memorandum
Opinion
and
Order
in
the
corresponding civil action.
SIGNED at Houston, Texas, on this the 5th day of May, 2017.
UNITED
-8-
LAKE
DISTRICT JUDGE
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