Hernandez v. United States Of America Do not docket in this case. File only in 6:13cr22.
Filing
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MEMORANDUM OPINION AND ORDER. Govt's motion for summary judgment is Granted; Movant's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 6:13cr22 (Defendant No. 1) is Denied, and he is Denied a Certificate of Appealability. (Signed by Judge John D. Rainey.) Parties notified. (yhausmann, 6)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.
JUAN MANUEL HERNANDEZ,
Defendant/Movant.
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CRIMINAL NO. 6:13-22-1
(CIVIL NO. 6:14-50)
MEMORANDUM OPINION & ORDER
Defendant/Movant Juan Manuel Hernandez (“Movant”) filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255 and both a declaration and memorandum
in support. D.E. 35, 36, 37. Now pending before the Court is the United States of America’s (the
“Government”) motion for summary judgment (D.E. 51), to which Movant has not responded.
I. FACTUAL BACKGROUND AND PROCEEDINGS
Movant was indicted for possession with intent to distribute 9.2 kilograms of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
Movant entered into a written plea agreement with the Government whereby he waived
his right to appeal or collaterally attack his conviction or sentence. D.E. 18, ¶ 7. During
rearraignment on May 14, 2013, Movant acknowledged that he had received the indictment, it
was read to him, and he understood the charge and had discussed it with his attorney. He
identified the plea agreement he signed and testified that it was read to him and that he discussed
it with his attorney before he signed it. The Court reviewed the waiver of his right to appeal and
to collaterally attack his conviction or sentence. Movant testified that he understood his rights
and his waiver, and that he and his attorney had gone over the waivers before he signed the plea
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agreement.1
The Court advised Movant that his statutory range of punishment was from a minimum
mandatory term of ten years up to life imprisonment and a potential $10 million fine. Movant
testified that he understood the range of punishment. He was generally warned that his guideline
punishment range would be based upon the present offense and his criminal history using the
Sentencing Guidelines. He testified that he understood. Movant testified that his decision to
plead guilty was voluntary and that he had not been promised a certain sentence or forced to
plead guilty.2 The Government outlined the facts it relied upon to charge Movant with possession
1.
THE COURT: I was handed a while ago a memorandum of plea agreement. On the last page, your
signature appears. Did you sign this agreement voluntarily?
THE DEFENDANT: Yes.
THE COURT: Did your lawyer read it and explain it to you before you signed it?
THE DEFENDANT: Yes.
THE COURT: Do you feel like you understand the terms of the agreement?
THE DEFENDANT: Yes.
THE COURT: Has anyone made any promises to you to get you to plead guilty this morning, other than
those contained in this agreement?
THE DEFENDANT: No.
THE COURT: On page 3 of the agreement, in Paragraph 7, there is a waiver of certain rights to appeal.
Were you aware of that before you signed the agreement?
THE DEFENDANT: Yes.
THE COURT: Were you aware that you not only waived your right to directly appeal your conviction and
your sentence, but you also waived the right to collaterally attack it under another federal law, 28, United
States Code, Section 2255. Are you aware of that?
THE DEFENDANT: Yes.
THE COURT: Did you discuss this waiver with your attorney?
THE DEFENDANT: No.
THE COURT: Well, did he explain it to you?
THE DEFENDANT: Yes.
THE COURT: Okay. All right. Do you feel like you understand the waiver and how it may affect your
rights in this case?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions you would like to ask me about the waiver?
THE DEFENDANT: No.
5/14/2013 Tr., D.E. 46, pp. 4:19–6:4.
2.
THE COURT: Has anyone told you what your sentence is going to be?
THE DEFENDANT: No.
THE COURT: Okay. All right. I just want to make sure. Because you might get some advice from over at
the jail, which would be terribly wrong. Your lawyer, of course, will give you some advice. He will try to
prepare you for sentencing and give you some idea as to what to expect. That’s his function, and that’s
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with intent to distribute methamphetamine. He agreed with the recitation. The Court found that
Movant was competent to plead guilty and accepted his plea as knowing and voluntary.
The Probation Department calculated both Movant’s offense level and criminal history
points in the Presentence Investigation Report (PSR). Movant’s base offense level was 38 based
on the fact that he had admitted to smuggling drugs into the United States twice, which justified
a finding that the offense involved 16.5 kg of methamphetamine. Two more levels were added to
the base offense level because the offense involved importation of methamphetamine. After
credit for acceptance of responsibility, Movant’s total offense level was 37. He had no criminal
history points, resulting in application of criminal history category I. Movant was subject to the
statutory mandatory minimum sentence of 10 years. With a total offense level of 37 and a
criminal history category of I, his guideline imprisonment range was 210–262 months.
Sentencing was held on March 4, 2014, during which defense counsel moved for a
downward variance from the mandatory minimum sentence. In response, the AUSA explained
that Movant did not qualify for safety valve because information gleaned from his debriefing
suggested that he had participated in as many as six smuggling efforts. Moreover, the
information Movant volunteered could not be substantiated. The Court ultimately sentenced
Movant to 198 months, deducting 12 months off the lowest end of the advisory guidelines based
on Movant’s decision to voluntarily waive his right of appeal in the plea agreement. Movant did
not appeal, but instead filed the present § 2255 motion on August 1, 2014. It is timely.
appropriate. But I’m the one who will determine your sentence. So you should not be entering a plea of
guilty expecting to receive a particular sentence. Do you understand that?
THE DEFENDANT: Yes.
5/14/2013 Tr. at 8:16–9:9.
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III. MOVANT’S ALLEGATIONS
Movant claims that his trial counsel was constitutionally ineffective for several reasons:
1) Counsel failed to adequately explain the terms of the plea agreement to
Movant in Spanish before it was executed, resulting in an involuntary plea;
2) Counsel misrepresented Movant’s eligibility for reductions for safety valve
and for having a minimal role in the commission of the offense, in order to
“lure” him into pleading guilty;
3) Counsel failed to file a pre-trial motion to suppress evidence, despite Movant
having instructed him to do so;
4) Counsel failed to file a sentencing memorandum on Movant’s behalf, wherein
he should have advanced the merits of a non-guideline sentence; and
5) Counsel failed to perfect an appeal for Movant by filing a notice of appeal
when Movant had instructed him to do so.
The Court previously held an evidentiary hearing on Movant’s claim regarding counsel’s
failure to appeal and determined that this claim should be denied because Movant did not instruct
counsel to file a notice of appeal on his behalf. The Government argues that Movant’s remaining
claims are barred by his waiver of the right to file a § 2255 motion.
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). Section 2255 relief
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“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 States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
B.
Enforcement of Waiver
Movant’s motion did not address his waiver of the right to file a § 2255 motion based
upon the terms of his plea agreement. The burden to demonstrate that his plea and waiver should
not be enforced is on Movant.
Movant attacks his guilty plea on two grounds. First, he claims that his trial counsel
failed to adequately explain the terms of the plea agreement to him in Spanish before he signed
the agreement. Second, Movant complains that counsel lied to him about his eligibility for
reductions for safety valve and for having a minimal role in the commission of the offense, in
order to induce him to plead guilty so that counsel would not have to investigate the case.
Movant’s claims are belied by the record. As set forth supra, Movant was questioned at
rearraignment regarding the plea agreement and his waiver of his right to appeal and/or file a §
2255 motion. He testified that counsel had read the plea agreement to him and explained the
waiver to him, and he understood. Movant was also questioned at rearraignment regarding his
understanding of the charges against him and was informed that his potential punishment ranged
from a minimum mandatory sentence of 10 years, up to life in prison. He stated that no one had
told him what his sentence was going to be, and that he did not plead guilty expecting a certain
sentence.
Courts give great weight to a defendant’s statements during the plea colloquy. Blackledge
v. Allison, 431 U.S. 63, 73 (1977) (“Solemn declarations in open court carry a strong
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presumption of verity.”); United States v. Cothran, 302 F.3d 279, 283–84 (5th Cir. 2002); see
also United States v. Abreo, 30 F.3d 29, 31 (5th Cir. 1994) (placing great weight on defendant’s
statements during plea); United States v. Maldonado-Rodriguez, 64 F.3d 719, 733 (1st Cir. 1995)
(giving credence to defendant’s representations at plea hearing that he had not been pressured).
Movant’s testimony that he understood he was waiving his right both to appeal (except
under certain circumstances) and to file any § 2255 motion is all that is required for his waiver to
be enforceable. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (“[A] defendant can
waive his right to appeal as part of a plea agreement if the waiver is informed and voluntary.”).
The Court finds that Movant’s plea was knowing and voluntary, and that his plea agreement and
his waiver of § 2255 rights contained therein are valid and enforceable. His remaining claims fall
within the scope of his waiver and are barred from consideration.
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 Movant 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
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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 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 reason 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 Movant 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, the Government’s motion for summary judgment (D.E. 51) is
GRANTED, Movant’ § 2255 motion (D.E. 35) is DENIED, and he is DENIED a Certificate of
Appealability.
It is so ORDERED.
SIGNED this 13th day of July, 2015.
____________________________________
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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