Ramirez v. USA

Filing 11

MEMORANDUM DECISION denying 1 Petitioners Motion Under 28 U.S.C. § 2255; pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, anevidentiary hearing is not required; pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court DENIES Petitioner a certificate of appealability. Signed by Judge Ted Stewart on 12/18/12. (ss)

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

SALVADOR RAMIREZ,
Petitioner,

MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255

vs.

UNITED STATES OF AMERICA,

Civil Case No. 2:12-CV-274 TS

Respondent.

Criminal Case No. 2:09-CR-784 TS

This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny Petitioner’s Motion.
I. BACKGROUND
Petitioner was named, along with several co-defendants, in an Indictment on October 14,
2009, charging him with manufacture of a controlled substance by cultivation and conspiracy to
manufacture a controlled substance by cultivation. Petitioner was subsequently named in a
Superseding Indictment on May 26, 2010, which added a count under 18 U.S.C. § 924(c).

1

On November 15, 2010, the day he was scheduled to go to trial, Petitioner pleaded guilty
to each count of the Superseding Indictment. On February 24, 2011, Petitioner was sentenced to
a term of imprisonment of 120 months. Judgment was entered on February 25, 2011. Petitioner
did not seek direct appeal, but did file his § 2255 Motion on March 19, 2012.
II. DISCUSSION
Petitioner raises the following arguments in his motion: (1) ineffective assistance of
counsel for failing to file a notice of appeal; (2) ineffective assistance of counsel for failing to
object to a lack of factual basis for the plea; (3) ineffective assistance of counsel for failing to
object to conditions of supervised release; and (4) ineffective assistance of counsel for failing to
challenge the quantity of marijuana.
The government argues that all but Petitioner’s second claim are barred by the collateral
appeal waiver in Petitioner’s plea agreement and that his Motion is untimely. In his reply,
Petitioner argues that both his first, second, and fourth claims are not barred by the collateral
appeal waiver. For the reasons discussed below, the Court finds that Petitioner’s Motion is
timely, that Petitioner’s first and third claims are barred by the collateral appeal waiver contained
in the plea agreement, and that Petitioner’s second and fourth claims fail on the merits.
A.

TIMELINESS
The government argues that Petitioner’s Motion should be dismissed because it is

untimely. As set forth above, Judgment was entered on February 25, 2011, but the Court did not
receive Petitioner’s § 2255 Motion until March 19, 2012.

2

28 U.S.C. § 2255(f)(1) provides for a one year limitations period, which begins to run on
“the date on which the judgment of conviction becomes final.” As Petitioner did not file a direct
appeal, his conviction became final for purposes of § 2255(f)(1), when the time for filing such an
appeal expired.1 Under this formula, Petitioner’s conviction became final on March 11, 2011.2
Petitioner relies on the “prisoner mailbox rule” to assert that his filing is timely.
[A]n inmate must establish timely filing under the mailbox rule by either (1)
alleging and proving that he or she made timely use of the prison’s legal mail
system if a satisfactory system is available, or (2) if a legal system is not available,
then by timely use of the prison’s regular mail system in combination with a
notarized statement or a declaration under penalty of perjury of the date on which
the documents were given to prison authorities and attesting that postage was
prepaid.3
The government argues that Petitioner’s filing does not meet the requirements of the
“prisoner mailbox rule.” The Court disagrees. On the final page of his § 2255 Motion, Petitioner
states, under penalty of perjury, that he placed his Motion in the prison mailing system on March
6, 2011. This is within the time limitations established by § 2255(f). Therefore, the Court finds
his Motion to be timely filed.

1

United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006) (“If the defendant does
not file an appeal, the criminal conviction becomes final upon the expiration of the time in which
to take a direct criminal appeal.”).
2

See Fed. R. App. P. 4(b)(1)(A)(i) (providing that a notice of appeal must be filed within
14 days of the entry of judgment).
3

Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005).
3

B.

COLLATERAL APPEAL WAIVER
The Tenth Circuit has established a three-part test to interpret appeal waivers, based upon

contract principles.4 The Court is to consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily
waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of
justice.”5 The Tenth Circuit further clarified that a court is to “strictly construe the scope of
appellate waivers and ‘any ambiguities in these agreements are read against the Government and
in favor of a defendant’s appellate rights.’”6 Moreover, the Court is to “hold a defendant to the
terms of a lawful plea agreement.”7 With these principles in mind, the Court proceeds with its
analysis.
1.

Scope of Appeal Waiver

Petitioner signed a broad waiver of appellate rights, which included the waiver of his
“right to challenge [his] sentence, and the manner in which the sentence is determined, in any
collateral review motion, writ or other procedure, including but not limited to a motion brought
under 28 U.S.C. § 2255.”8

4

United States v. Hahn, 359 F.3d 1315, 1324-25 (10th Cir. 2004) (en banc) (“[C]ontract
principles govern plea agreements.”).
5

United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. 2005) (quoting Hahn, 359 F.3d
at 1325).
6

7

8

Id. (internal citations and quotations omitted).
United States v. Atterberry, 144 F.3d 1299 (10th Cir. 1998).
Case No. 2:09-CR-784 TS, Docket No. 303, at 5.
4

The Court finds that the language of the plea agreement is clear and unequivocal.
Petitioner waived any right to bring a collateral attack on his sentence, including a motion
brought pursuant to 28 U.S.C. § 2255. However, such a collateral appeal waiver does not
prohibit ineffective assistance of counsel claims challenging the validity of the plea or the
waiver.9
With this standard in mind, the Court must consider whether Petitioner’s claims fall
within the scope of the collateral appeal waiver contained in his plea agreement.
As to his first claim, that counsel was ineffective for failing to file an appeal, Petitioner
points to United States v. Gurrero10 and United States v. Garrett,11 for the proposition that,
despite the waiver, he may prevail on his first ineffective assistance of counsel claim. The Tenth
Circuit, however, has recently clarified that Gurrero and Garrett are distinguishable from cases
like the one before the Court. In Gurrero and Garrett, the government did not argue that the
collateral appeal waiver barred such claims.12 Where, as here, the government seeks to enforce
the collateral appeal waiver, the waiver will bar an appeal-related ineffective assistance claim
when “counsel’s alleged failure to file an appeal does not undermine the validity of the plea or

9

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).

10

488 F.3d 1313 (10th Cir. 2007).

11

402 F.3d 1262 (10th Cir. 2005).

12

United States v. Viera, 674 F.3d 1214, 1218-19 & n.4 (10th Cir. 2012).
5

the waiver.”13 There is nothing to suggest that counsel’s alleged failure to file an appeal in this
case undermines the validity of Petitioner’s plea or the waiver. Therefore, this claim is barred.
Turning next to Petitioner’s second and fourth claims, the Court finds that they are not
barred by the collateral appeal waiver. As stated, the Tenth Circuit has held that a collateral
appeal waiver does not prohibit ineffective assistance of counsel claims challenging the validity
of the plea or the waiver. In both his second and fourth claims Petitioner asserts that counsel was
ineffective for failing to object to the insufficiency of the evidence. Such claims may challenge
the validity of Petitioner’s guilty plea.14 Therefore, Petitioner’s second and fourth claims are not
within the scope of the collateral appeal waiver.
Finally, the Court considers Petitioner’s third claim. In that claim, Petitioner argues that
counsel was ineffective for failing to object to certain conditions of supervised release. That
claim does not challenge the validity of Petitioner’s plea or of the collateral appeal waiver.
Therefore, it falls within the scope of the waiver and that claim is barred.
2.

Knowing and Voluntary Waiver

The Tenth Circuit has held that it will “only enforce appeal waivers that defendants enter
into knowingly and voluntarily.”15 In determining whether an appellate waiver is knowing and
voluntary, the Court looks to two factors: (1) “whether the language of the plea agreement states

13

Id. at 1219.

14

See Cockerham, 237 F.3d at 1190-91.

15

Hahn, 359 F.3d at 1328 (citing United States v. Elliot, 264 F.3d 1171, 1173 (10th Cir.

2001)).
6

that the defendant entered the agreement knowingly and voluntarily,”16 and (2) whether there was
“an adequate Federal Rule of Criminal Procedure 11 colloquy.”17
Petitioner argues that there was not a sufficient Rule 11 colloquy. However, a review of
the transcript from the change of plea hearing and the Statement in Advance of Plea confirm that
Petitioner was informed of the waiver of his collateral appeal rights, that he was aware of the
provision of the plea agreement waiving those rights, and that he waived those rights knowingly
and voluntarily. Therefore, the Court finds that the collateral appeal waiver was entered into
knowingly and voluntarily.
3.

Miscarriage of Justice

The third prong of the appellate waiver enforcement analysis “requires the court to
determine whether enforcing the waiver will result in a miscarriage of justice.”18
To prove that enforcement of an appellate waiver would result in a miscarriage of
justice, a defendant must establish at least one of four circumstances: (1) reliance
by the court upon an impermissible factor such as race in imposition of the
sentence; (2) ineffective assistance of counsel in connection with the negotiation
of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver
is otherwise unlawful and seriously affects the fairness, integrity, or public
reputation of judicial proceedings.19
Petitioner bears the burden of establishing a miscarriage of justice.20

16

Id. at 1325 (citing Elliot, 264 F.3d at 1174 n.1) (“Indeed, the plea agreement, which he
signed, stated that [the defendant] ‘knowingly and voluntarily waive[d] the right’ to appeal.”).
17

Id. (internal citations omitted).

18

Id. at 1327 (internal citations omitted).

19

Porter, 405 F.3d at 1143 (citing Hahn, 359 F.3d at 1327).

20

United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).
7

Petitioner does not raise any of these factors in his Motion and there is nothing in his
Motion to support such a finding. Therefore, the Court finds that enforcing the waiver would not
result in a miscarriage of justice. As a result, the Court will enforce Petitioner’s waiver as to his
first and third claims.
C.

INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner’s second and fourth claims assert ineffective assistance of counsel. The

Supreme Court has set forth a two-pronged test to guide the Court in making a determination of
ineffectiveness of counsel. “To demonstrate ineffectiveness of counsel, [Petitioner] must
generally show that counsel’s performance fell below an objective standard of reasonableness,
and that counsel’s deficient performance was prejudicial.”21 A Court is to review Petitioner’s
ineffective assistance of counsel claim from the perspective of his counsel at the time he or she
rendered the legal services, not in hindsight.22 In addition, in evaluating counsel’s performance,
the focus is not what is prudent or appropriate, but only what is constitutionally compelled.23
Finally, there is “a strong presumption that counsel provided effective assistance, and a section
2255 defendant has the burden of proof to overcome that presumption.”24

21

United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
22

Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).

23

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).

24

United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2002).
8

1.

Second Claim

Petitioner’s second claim asserts that counsel was ineffective for failing to object to what
Petitioner argues was a lack of a factual basis for his conviction under 18 U.S.C. § 924(c). To
understand Petitioner’s argument, the Court must look to the language of 18 U.S.C. § 924(c), the
Superseding Indictment, and the Statement in Advance of Plea.
18 U.S.C. § 924(c) provides an enhanced sentence for “any person who, during and in
relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm.”25
While the statute states the crime in the disjunctive—uses or carries or possesses—the
Superseding Indictment is phrased in the conjunctive: “defendants herein, did knowingly use and
carry one or more of the . . . firearms and ammunition during and in relation to a drug-trafficking
crime and did possess one or more of the . . . firearms and ammunition in furtherance of a drugtrafficking crime.”26
The factual statement in the Statement in Advance of Plea returns to the disjunctive:
The elements of Count III, Possession of a Firearm in Furtherance of a Drug
Trafficking Crime, are as follows: (1) defendant committed a crime as charged in
Counts I or II of the Superseding Indictment; and (2) defendant possessed a
firearm in furtherance of the crime; or (2) defendant used or carried a firearm in
relation to this crime.27

25

18 U.S.C. § 924(c)(1)(A) (emphasis added).

26

Case No. 2:09-CR-784 TS, Docket No. 197, at 3 (emphasis added).

27

Id., Docket No. 301, at 2 (emphasis added).
9

At the change of plea hearing, Petitioner admitted the following facts as to the § 924(c)
charge: “On or about September 17th, 2009, in the Central Division of the District of Utah, I
used or carried firearms during and in relation to the crimes charged in Counts I and II of the
Superseding Indictment . . . . My conduct constitutes a violation of 18 U.S.C. § 924(c)(1)(A).”28
Petitioner’s ineffective assistance argument is centered around the different language in
the statute, Superseding Indictment, and Statement in Advance of Plea. Petitioner argues that, if
the government is asserting that he possessed the firearm, that was not part of the plea agreement
and there are not facts to support possession. Petitioner further argues that, if the government
alleges that Petitioner used or carried the firearm, he was not charged with that offense.
It is “hornbook law that a crime denounced in the statute disjunctively may be alleged in
an indictment in the conjunctive, and thereafter proven in the disjunctive.”29 Thus, the
government could prove a violation of § 924(c) by showing either (1) the Petitioner used or
carried a firearm during and in relation to a drug trafficking crime; or (2) that he possessed a
firearm in furtherance of a drug trafficking crime. It need not show both.
In this case, the Superseding Indictment is phrased in the conjunctive. Therefore, the §
924(c) count could be proven by showing that Petitioner used or carried a firearm during and in
relation to a drug trafficking crime or that he possessed a firearm in furtherance of a drug
trafficking crime. Both the plea agreement and plea colloquy established a sufficient factual
basis to conclude that Petitioner used or carried firearms during and in relation to a drug

28

Id. at 4.

29

United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976).
10

trafficking crime. Therefore, the Court cannot find that counsel’s performance was deficient in
failing to object to the factual basis of Petitioner’s plea and the Court need not consider
Petitioner’s arguments concerning the sufficiency of the evidence for a possession in furtherance
charge.
2.

Fourth Claim

Count I of the Superseding Indictment charged Petitioner with knowingly and
intentionally manufacturing marijuana by cultivation in the quantity of 1,000 or more plants. As
a result of this quantity, Petitioner faced a ten-year minimum mandatory sentence.30 In his
Statement in Advance of Plea, Petitioner admitted that he “knowingly and intentionally
manufactured (and aided and abetted others in manufacturing) more than 1,000 marijuana plants
by cultivation.”31
Petitioner asserts that the government’s only evidence in support of the number of plants
comes from photographs of the cultivation site. Petitioner’s fourth claim alleges that counsel
was ineffective for failing to challenge the quantity of marijuana. As the government’s
Supplemental Memorandum states, however, the government had much more evidence to
introduce at trial than just the photographs of the site. This evidence would have been available
to petitioner’s counsel. Based on this, the Court cannot find the counsel performed deficiently by
failing to challenge the quantity of marijuana. Neither can Petitioner show prejudice, as he

30

21 U.S.C. § 841(b)(1)(A)(vii).

31

Case No. 2:09-CR-784 TS, Docket No. 301, at 4.
11

admitted during his change of plea that he knowingly and intentionally manufactured by
cultivation 1,000 or more marijuana plants. Therefore, this claim fails.
III. CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner’s § 2255 Motion (Docket No. 1 in Case No. 2:12-CV-274 TS)
is DENIED for the reasons set forth above. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
The Clerk of Court is directed to close Case No. 2:12-CV-274 TS forthwith.
DATED December 18, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

12