Castro-Acosta v. USA

Filing 5

MEMORANDUM DECISION denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Dee Benson on 09/27/2013. (asp)

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

MANUEL CASTRO-ACOSTA
Petitioner,

ORDER DENYING MOTION UNDER 28
U.S.C. § 2255

vs.

UNITED STATES OF AMERICA

Civil Case No. 2:13-CV-299
Related Case No. 2:10-CR-1005-DB-1

Respondent,

This matter is before the Court on petitioner’s Motion Pursuant to 28 U.S.C. § 2255 to
Vacate, Set Aside, or Re-Sentence. (Dkt. No. 1.) At the court’s request, the government filed a
response in opposition to petitioner’s motion, to which petitioner responded. (Dkt. Nos. 2-4.)
Having reviewed the relevant materials, the court now issues the following Memorandum
Decision and Order.
PROCEDURAL HISTORY
On November 3, 2010, petitioner Manuel Castro-Acosta was indicted by a federal grand
jury in the district of Utah for possessing methamphetamine with intent to distribute and for
being found in the United States after having been deported. (Criminal Case No. 2:10-CR-1005-

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DB-1, Dkt. No. 1.)1 On September 29, 2011, the United States filed a superceding indictment
charging petitioner with possessing and distributing a large amount of methamphetamine.
(Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No. 42.) Petitioner was also indicted again for
being found in the United States after having been deported. (Id.)2
On March 12, 2012, petitioner entered a plea agreement with the government. (Criminal
Case No. 2:10-CR-1005-DB-1, Dkt. No. 62.) Petitioner pleaded guilty to Count II of the
superceding indictment, stipulating that he had “traveled to Utah County, Utah, for the purpose
of delivering methamphetamine to a person who, unbeknownst to [him], was working as an
informant for the Utah County Major Crimes Task Force.” (Id. at ¶11.) Petitioner further
stipulated that a laboratory analysis of the substance in his possession was “84.9 percent
methamphetamine for a total of 309.2 grams of actual methamphetamine.” (Id.) As part of the
plea agreement, petitioner waived his right to challenge his sentence “in any collateral review
motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. §
2255.” (Id. at ¶ 12.) In return, the United States moved to dismiss the remaining counts at the

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Specifically, Count I of the indictment states that “Manuel Castro-Acosta . . . did
knowingly and intentionally possess with intent to distribute fifty (50) grams or more of a
mixture or substance containing a detectable amount of methamphetamine. . . in violation of 21
U.S.C. § 841(a)(1).” (Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No. 1 at 1.) Count II states
that he “was found in the United States after having been deported therefrom . . . , and not having
obtained the express consent of the Secretary of Homeland Security to reapply for admission to
the United States in violation of Title 8, United States Code, Section 1326(a).” (Id. at 2.)
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Counts I and II of the original indictment became Counts II and III of the superceding
indictment. Count I of the superceding indictment states that “Manuel Castro-Acosta . . . did
knowingly and intentionally distribute fifty (50) grams or more of a mixture or substance
containing methamphetamine . . . in violation of 21 U.S.C. § 841(a)(1).” (Criminal Case No.
2:10-CR-1005-DB-1, Dkt. No. 42 at 1.)
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time of sentencing. (Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No. 62 at 12 & Dkt. No. 70.)3
Thereafter, petitioner was sentenced to 144 months of incarceration to be followed by 60 months
of supervised release. (Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No. 73.) Petitioner’s
sentence reflected the minimum mandatory sentence associated with the crime to which he pled
guilty. See 21 U.S.C. § 841(b)(1)(A).
On April 29, 2013, despite the waiver provision of his plea agreement, petitioner moved
to vacate his sentence under 28 U.S.C. § 2255. In his motion, petitioner also claims that he
received ineffective assistance of counsel. (Dkt. No. 1 at 8-9.)
DISCUSSION
I. Waiver of Post-Conviction Rights
“[A] waiver of collateral attack rights brought under § 2255 is generally enforceable
where the waiver is expressly stated in the plea agreement and where both the plea and waiver
were knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d 1179, 1183 (10th
Cir. 2001). Petitioner “bears the burden” of “provid[ing] support for the notion that he did not
knowingly and voluntarily enter into his plea agreement.” U.S. v. Hahn, 359 F. 3d 1315, 1329
(10th Cir. 2004). Petitioner signed a broad waiver of his 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
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The parties initially agreed to a 168-month sentence pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. However, on June 27, 2012, the government submitted an
acknowledgment that “the requirement for a Rule 11(c)(1)(C) disposition [was] withdrawn and
that the sentence should be imposed pursuant to the plea previously entered which carries a
minimum mandatory sentence of ten years.” (Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No.
70.)
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a motion brought under 28 U.S.C. § 2255.” (Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No.
62 at 5.) Petitioner further stated in the Statement by the Defendant in Advance of Plea of Guilty
that the waiver was “knowingly, voluntarily, and expressly” made. (Id.)
In spite of the language in the Statement by the Defendant in Advance of Plea of Guilty,
petitioner now argues that his plea and waiver of collateral appeal rights were not knowingly and
voluntarily made. (Dkt. No. 1 at 9.) Petitioner seems to contend that he, as a Spanish speaker,
was not provided with “a proper translation of all the elements” of the charges against him. Id.
However, the record indicates that petitioner was provided with an interpreter at his change of
plea hearing where the elements of the crime to which he pleaded were translated for him.
(Criminal Case No. 2:10-CR-1005-DB-1, Dkt. Nos. 58 & 89.) Furthermore, petitioner concedes
that he “did go to court to face charges and was provided a translator.” (Dkt. No. 1 at 10.)
However, petitioner complains that his interpreter “only interpreted from English into Spanish”
but failed to explain “the legalese terminology with all its ramifications.” (Id.)
In determining whether a defendant has knowingly and voluntarily waived his rights, the
Tenth Circuit has established a test which requires that this court “primarily examine two
factors.” United States v. Padilla-Rodriguez, 335 Fed. Appx. 724, 727 (10th Cir. 2009). First, the
court looks at “whether the language of the plea agreement states that the defendant entered the
agreement knowingly and voluntarily.” Hahn, 359 F.3d at 1325. Petitioner’s plea agreement
required that he sign and acknowledge that he “voluntarily, knowingly, and expressly” waived
his collateral attack rights. Petitioner acknowledged, by his signature, that he had discussed his
case and plea with his lawyer as much as he wished and had no additional questions. Further, his

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signature acknowledged that his plea was entered after “full and careful thought; with the advice
of counsel; and with a full understanding of [his] rights, the facts and circumstances of the case,
and the consequences of the plea.” (Criminal Case No. 2:10-CR-1005-DB-1, Dkt. No. 62 at 8.)
See Padilla-Rodriguez, 335 Fed. Appx. at 727 (citing Hahn, 359 F.3d at 1325)). As a result,
petitioner’s signature on the Statement of Defendant in Advance of Plea of Guilty indicates that
petitioner’s waiver was made knowingly and voluntarily.
Second, the court examines whether an adequate colloquy took place pursuant to Rule 11
of the Federal Rules of Criminal Procedure. Hahn, 359 F.3d at 1325. The transcript of
petitioner’s hearing in which he submitted his plea on March 12, 2012, indicates that Magistrate
Judge Alba engaged petitioner in an adequate colloquy and that plaintiff indicated to the court
that he entered his plea knowingly and voluntarily. (Criminal Case No. 2:10-CR-1005-DB-1,
Dkt. No. 89.) Furthermore, petitioner—under oath—affirmatively answered Magistrate Judge
Alba’s explicit question regarding whether he understood his interpreter. (Id. at 15.)
Having reviewed the Defendant’s Statement in Advance of Plea of Guilty and the
transcript of the colloquy in which petitioner was engaged at the hearing in which he entered his
plea, the court holds that the plea was entered knowingly and voluntarily. As a result,
petitioner’s waiver of his rights to motions of collateral review, including motions brought
pursuant to

§ 2255, is valid. Therefore, all of plaintiffs claims in his § 2255 motion are

precluded by this waiver except for his claim that he received ineffective assistance of counsel.

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II. Ineffective Assistance of Counsel
The court finds that petitioner’s only claim not barred by his waiver of rights—namely,
that he received ineffective assistance of counsel—lacks merit. Petitioner’s argument supporting
this claim is difficult to discern. It appears that his primary complaint is that his counsel never
submitted a “single motion to suppress evidence” and failed to provide petitioner with “a proper
translation of all the elements of the formal criminal charge.” (Dkt. No. 1 at 8 & 9.) Petitioner
also seems to argue that his counsel failed to effectively assist him because his counsel was
“more worried about sustaining a good relationship with the district [sic] attorney to keep getting
fresh cases and to keep getting paid $5000.00 for every sham of a case they participate in and
pretend to defend an accused person [sic].” (Id. at 14.)
“To demonstrate ineffectiveness of counsel, [a petitioner] must generally show that
counsel’s performance fell below an objective standard of reasonableness, and that counsel’s
deficient performance was prejudicial.” United States v. Lopez, 100 F.3d 113, 117 (10th Cir.
1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Petitioner must also
demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors,
he would not have pleaded guilty and insisted on going to trial.” Lasiter v Thomas, 89 F.3d 699,
704 (10th Cir. 1996). However, there is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Petitioner fails to show that his counsel’s performance fell below an objective standard of
reasonableness or that he was prejudiced by the alleged deficient performance. See Lopez, 100
F.3d at 117. Plaintiff also fails to demonstrate that he would have insisted on going to trial but

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for his counsel’s alleged errors. See Lasiter v. Thomas, 89 F.3d at 704. Petitioner’s assertion that
he was never provided with a “a proper translation of all the elements of the formal criminal
charge” is conclusory and contradicted by the record. (Criminal Case No. 2:10-CR-1005-DB-1,
Dkt. Nos. 58, 62, & 89.) Petitioner’s contention that his counsel failed to adequately defend him
because of his counsel’s professional relationship with the prosecuting attorney is equally
without merit and contradicts petitioner’s statements on the record. (Criminal Case No. 2:10-CR1005-DB-1, Dkt. Nos. 62 & 89.)
Finally, petitioner’s argument that his counsel did not effectively represent him because
of his counsel’s failure to file motions to suppress evidence also lacks merit. Petitioner argues
that his arrest was facilitated by illegal recording of his telephone conversations by law
enforcement officials without a warrant. Petitioner seems to argue that his counsel should have
filed a motion to suppress as a result of these recordings. However, the recorded conversations
in petitioner’s case involved a person acting on behalf of law enforcement officers who had
consented to the recording of the conversations. (Criminal Case No. 2:10-CR-1005-DB-1, Dkt.
No. 72 at ¶¶ 7-10.) The consent of one party to a conversation precludes the need for a warrant
and renders the conversations admissible as evidence against any of the conversation’s
participants. United States v. Faulkner, 439 F.3d 1221 (10th Cir. 2006); see also 18 U.S.C. §
2511(2)(c) and (d). Therefore, petitioner’s counsel would have had no grounds to file a motion to
suppress evidence gained as a result of the recorded conversations. Petitioner’s counsel did not
fall below any objective standard of reasonableness by not filing a motion to suppress the
recorded conversations because there was no basis for such a motion. Petitioner indicates no

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other grounds on which his counsel should have filed a motion to suppress.
Petitioner fails to demonstrate that his counsel’s performance fell below an objective
standard of reasonableness and that he was prejudiced by the alleged deficiency. See See Lopez,
100 F.3d at 117. Petitioner further fails to demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, he would not have pleaded guilty. Lasiter v Thomas, 89 F.3d at
704. Therefore, the court finds that petitioner’s claim that he received ineffective assistance of
counsel lacks merit and any relief requested on the basis of the allegedly deficient representation
is denied.
CONCLUSION
For the foregoing reasons, petitioner’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate,
Set Aside or Re-Sentence is DENIED.
IT IS SO ORDERED.

DATED this 27th day of September, 2013.

_________________________________
Dee Benson
United States District Judge

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