Mendez-Moreno v. USA

Filing 6

ORDER AND MEMORANDUM DECISION denying and dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255) - CASE CLOSED. Signed by Judge Tena Campbell on 10/22/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ANTONIO MENDEZ-MORENO,
Petitioner,

ORDER
AND

vs.

MEMORANDUM DECISION

UNITED STATES OF AMERICA,

Case No. 1:14-cv-00045-TC

Respondent.

Petitioner Antonio Mendez-Moreno and his son, Antonio Mendez, Jr., were indicted on
one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. (Indictment in United States v. Mendez-Moreno, 1:12-cr-00028,
Dkt. No. 1.)1 Mr. Mendez-Moreno faced a mandatory minimum sentence of ten years and a
maximum life sentence. Later, as part of a plea agreement between Mr. Mendez-Moreno and the
United States, Mr. Mendez-Moreno plead guilty to a felony information charging him with
misprision of a felony, a violation of 18 U.S.C. § 4, which carries a three-year statutory
maximum penalty.
In the Statement by Defendant in Advance of Plea of Guilty, signed by both Mr. MendezMoreno and his attorney, Mr. Mendez-Moreno agreed that he would plead guilty pursuant to
11(c)(1)(C) of the Federal Rules of Criminal Procedure to the charge in the felony information

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All citations to the record will be to the criminal record in Case No. 1:12-cr-00028
unless otherwise specifically noted.

and agreed to waive, among other rights, the right to file an appeal or a motion under 28 U.S.C. §
2255. (Dkt. No. 106 at 1-4.) In exchange, the United States agreed to a sentence of three years
and agreed to dismiss the indictment against Mr. Mendez-Moreno. (Id. at 4-5.) The court
accepted Mr. Mendez-Moreno’s guilty plea and sentenced him to three years in custody, the
agreed-upon sentence.
Mr. Mendez-Moreno, acting pro se, has now filed a petition pursuant to 28 U.S.C. § 2255
seeking to vacate, set aside, or correct his sentence. In his petition, Mr. Mendez-Moreno
contends that he was denied effective assistance of counsel for the following reasons: his counsel
failed to file an appeal; his counsel did not explain the consequences of the plea agreement; the
government breached the plea agreement; the guidelines were not correctly calculated; and there
was a failure to specify drug quantities.
The court has considered each of Mr. Mendez-Moreno’s arguments and concludes that he
did not receive ineffective assistance of counsel and DENIES his petition.
ANALYSIS
To demonstrate ineffective assistance of counsel, “a petitioner must establish both that his
attorney’s representation was deficient and that he was prejudiced by that deficiency.” James v.
Gibson, 211 F.3d 543, 555 (10th Cir. 2000), cert. denied, 531 U.S. 1128 (2001) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). “To succeed on the deficiency prong, a petitioner
‘must overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’” Id. at 555 (quoting Strickland, 466 U.S. at 689). “Judicial
scrutiny of counsel’s performance is highly deferential.” Id. To succeed on the prejudice prong,
a petitioner “must show that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. There is a strong presumption that counsel provided effective assistance, and a
§ 2255 petitioner has the burden of proof to overcome that presumption. James, 211 F.3d at 556.
A.

Failure of Counsel to File a Direct Appeal

When a petitioner claims his counsel was ineffective for failing to perfect an appeal,
prejudice is presumed, and the petitioner must only satisfy the first prong of the Strickland test—
that counsel’s performance fell below an objective standard of reasonableness. Romero v. Tansy,
46 F.3d 1024, 1030 (10th Cir. 1995) (citing Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir. 1990)).
The Tenth Circuit addressed the parameters of criminal defense counsel’s responsibility to
perfect an appeal in Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991). The petitioner’s attorney in
Baker failed to file a timely notice of intent to appeal. Although the petitioner did not tell his
attorney that he wished to appeal, no one from counsel’s office contacted the petitioner during
the ten days within which he was required to file the notice of intent to appeal. The Baker court
held that the Sixth Amendment’s guarantee of effective counsel requires that counsel explain the
advantages and disadvantages of an appeal, advise the defendant about whether there are
meritorious grounds for an appeal, and inquire whether the defendant wants to appeal his
conviction. Id. at 1499; see also United States v. Youngblood, 14 F.3d 38, 40 (10th Cir. 1994).
Here, however, the court concludes that Mr. Mendez-Moreno’s counsel was not
ineffective when he did not file an appeal for Mr. Mendez-Moreno. As part of the plea
agreement, Mr. Mendez-Moreno waived his right to file an appeal. (Statement by Def. in
Advance of Plea of Guilty, Dkt. No. 106 at 4.) In exchange, the government agreed, among other
things, to enter into a binding agreement, if the court agreed, for a three-year sentence for Mr.
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Mendez-Moreno. (Id. at 4-5.) Because Mr. Mendez-Moreno was contractually bound not to file
an appeal, his attorney was not ineffective when he did not file one.
B. Failure to Explain the Plea Agreement
Mr. Mendez-Moreno appears to argue that he did not understand the consequences of
pleading guilty. But the record of the change of plea hearing belies this argument. Throughout the
hearing before the Honorable Paul M. Warner, Judge Warner carefully questioned Mr. MendezMoreno about whether he understood his constitutional rights, whether he had ample time to
discuss the case and the consequences of pleading guilty with his attorney, and whether he fully
understood the plea agreement. For example, Judge Warner explained that, in the plea agreement,
the United States agreed to a three-year sentence in exchange for Mr. Mendez-Moreno’s guilty
plea on the misprision charge. Judge Warner further explained that the court could potentially
impose a sentence of less than three years, but the government would then have the option to
withdraw the plea agreement. After explaining the plea agreement in this way, Judge Warner
warned Mr. Mendez-Moreno that he should not plead guilty unless he was prepared to receive a
three-year sentence. Mr. Mendez-Moreno confirmed that he understood. (Change of Plea Hr’g
Tr. 17-18, Apr. 29, 2103.)
Judge Warner asked Mr. Mendez-Moreno repeatedly whether he understood what Judge
Warner was explaining. (See id. at 5, 8, 12, 13-15, 16, 17-18, 20, 21, 23.) Judge Warner asked
many times during the hearing whether Mr. Mendez-Moreno had had time to discuss certain
points with his counsel and whether he had understood each explanation. (See id. at 10, 11-12,
15, 22, 23.) Once, during the hearing, when it appeared that Mr. Mendez-Moreno did not fully

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understand one of Judge Warner’s questions, Judge Warner stopped the hearing to allow Mr.
Mendez-Moreno and his attorney to confer. (Id. at 14.)
In sum, after reviewing the transcript of the change of plea hearing and the Statement in
Advance of Plea, the court is convinced that Mr. Mendez-Moreno’s argument that he did not
understand the plea agreement is without merit.
C. Breach of the Plea Agreement
Mr. Mendez-Moreno simply states, without support or specifics, that somehow the
government breached the plea agreement. (Pet. at 17, Dkt. No. 1, Case No. 1:14-cv-00045.) Mr.
Mendez-Moreno is wrong. The government agreed to a three-year sentence and to move to
dismiss the indictment against Mr. Mendez-Moreno. The government did exactly as it agreed to
do and the court sentenced Mr. Mendez-Moreno to three years in custody and dismissed the
indictment.
D. Sentencing Guidelines
Again without giving any details or argument, Mr. Mendez-Moreno states that his
“sentence was further tainted in that its calculation and reliance on the unconstitutionally applied
Sentencing Reform Act of 1984 violated Petitioner’s Fifth and Sixth Amendment rights.” (Id.)
This argument is baseless. The court sentenced Mr. Mendez-Moreno to a three-year sentence, as
he and the government had agreed. The court did not rely on the Sentencing Guidelines.
E. Failure to Specify Drug Quantities
Mr. Mendez-Moreno does not indicate where or how there was a failure to specify drug
quantities. Nor could he. Although the indictment charged him with possessing with intent to
distribute “500 grams or more of a mixture or substance containing a detectable amount of
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Methamphetamine,” (Indictment, Dkt. No. 1), he plead guilty to a charge of misprision of a
felony, a non-drug charge.
For the above reasons, the court orders that the petition in the above case is DENIED and
DISMISSED.
DATED this 22th day of October, 2014.
BY THE COURT:

TENA CAMPBELL
United States District Judge

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