Hernandez v. United States of America

Filing 99

MEMORANDUM OPINION AND ORDER: Denying Petitioner's 75 MOTION to Vacate, Set Aside or Correct Sentence (2255) and dismissing this case from the Court's docket; denying a certificate of appealability. Signed by Judge Irene C. Berger on 2/6/2019. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

RHINELANDER HERNANDEZ,
Petitioner,
v.

CIVIL ACTION NO. 5:17-cv-03000
(Criminal No. 5:15-cr-00033)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Document 75), brought on the
grounds, inter alia, that his counsel was ineffective, that he was improperly sentenced as a career
offender, and that he should have been permitted to withdraw his guilty plea. The Court has also
reviewed the Petitioner’s Memorandum in Support of Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (Document 76), the Response of the United States to
Movant Rhinelander Hernandez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Document 80), and the Reply of the Movant to the
United States’ Response to the Movant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Document 86). For the reasons stated herein,
the Court finds that the Petitioner’s motion should be denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Petitioner, Rhinelander Hernandez, was indicted on February 24, 2015, on charges of
distribution of cocaine and distribution of heroin. On May 13, 2015, the United States filed an
Information pursuant to 21 U.S.C. § 851, alleging that Mr. Hernandez was subject to enhanced
penalties due to a prior felony drug conviction. On May 28, 2015, Mr. Hernandez’s original
attorney, an Assistant Federal Public Defender, sought to withdraw, and the Magistrate Judge
appointed Stephen O. Callaghan, a member of the CJA panel.
Mr. Hernandez entered into a plea agreement with the United States, wherein he agreed to
plead guilty to Count Two of the Indictment, or the distribution of heroin. The United States
agreed to dismiss Count One and the § 851 Information. During a plea hearing held on August
18, 2015, Mr. Hernandez indicated that he was satisfied with his counsel and stated the factual
basis of his plea. He explained that he sold one or two stamps of heroin to a “[a] guy named
Tattoo” on December 2, 2014 at a Go-Mart in Beckley, West Virginia, after arranging the
transaction on the internet. (Plea Tr. at 12:4–13:7) (Document 58.) The Court explained the
maximum potential penalties and advised Mr. Hernandez that the United States’ agreement to
dismiss the § 851 Information would have no bearing on whether a career offender enhancement
would apply under the Guidelines. Mr. Hernandez stated that he understood the potential penalties.
He also assured the Court that he understood the terms of the appellate waiver contained in his
plea agreement, including his agreement to waive the right to appeal any sentence that did not
exceed the statutory maximum.
Mr. Hernandez appeared for his scheduled sentencing hearing on December 2, 2015. At
the beginning of the hearing, Mr. Callaghan informed the Court that Mr. Hernandez had requested
2

a continuance, wanted to withdraw his plea, and requested new counsel. Mr. Callaghan described,
in general terms, his interactions with his client, including discussions prior to both the plea and
the sentencing. Mr. Hernandez indicated that he wished to withdraw his plea and be appointed
new counsel because he believed he could not have been convicted of the charge to which he pled
guilty. The Court found no legitimate legal basis to support a continuance, withdrawal of the guilty
plea, or appointment of new counsel under the applicable legal standard for each issue.
Mr. Hernandez, by counsel, objected to the use of a state conviction for conspiracy to
commit a felony as a predicate controlled substance offense for purposes of the career offender
provision of the Guidelines. The Court overruled the objection, finding the state statute divisible
and concluding that it was appropriate to consider the felony the defendant was convicted of
conspiring to commit—here, delivery of a Schedule II narcotic controlled substance. Because of
his career offender status, Mr. Hernandez’s Guideline sentencing range was 151-188 months. The
Court varied downward to impose a sentence of 120 months.
Mr. Hernandez filed a direct appeal. The Fourth Circuit appointed attorney John Hampton
Tinney, Jr., to represent him on appeal. Mr. Tinney filed an Anders brief, suggesting that
application of the career offender provision may have been in error. Mr. Hernandez filed a pro-se
brief, similarly arguing that he should not have been sentenced as a career offender and that his
attorney was ineffective. On August 12, 2016, the Fourth Circuit dismissed Mr. Hernandez’s
appeal in an unpublished opinion, concluding that the appellate waiver in Mr. Hernandez’s plea
agreement precluded consideration of the career offender enhancement. The Fourth Circuit further
found that no ineffective assistance of counsel was apparent from the record, and that issue could
be more fully explored in a § 2255 petition.
3

Mr. Hernandez brought his motion pursuant to 28 U.S.C. § 2255 on May 22, 2017. The
Magistrate Judge directed the United States to file an answer, and the United States’ answer to the
motion was filed on October 24, 2017. The motion is fully briefed and ripe for ruling.
STANDARD OF REVIEW
Motions pursuant to 28 U.S.C. § 2255 permit federal prisoners to challenge their
convictions or sentences, usually within one year after the judgment becomes final. “A prisoner
in custody under sentence of a court established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or correct the
sentence.” 28 U.S.C. § 2255(a). The petitioner bears the burden of proving, by a preponderance
of evidence, that he is entitled to relief under §2255. Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958). However, “a criminal defendant may waive his right to attack his conviction and
sentence collaterally, so long as the waiver is knowing and voluntary.” United States v. Lemaster,
403 F.3d 216, 220 (4th Cir. 2005). Where the motion, files, and records in the case “conclusively
show that the prisoner is entitled to no relief,” no hearing is required. 28 U.S.C. § 2255(b).
DISCUSSION
Mr. Hernandez asserts that he is innocent of selling heroin to the confidential informant as
alleged in the count of conviction. He states that he informed Mr. Callaghan of his innocence and
sought to review a video of the transaction produced in discovery with Mr. Callaghan, but Mr.
Callaghan insisted that the video clearly showed a drug transaction and advised him to plead guilty.
4

He states that he pled guilty only because his attorney was unwilling to assist him in proving his
innocence. Mr. Hernandez contends that his appellate attorney failed to review the discovery
materials that showed that he had not distributed the heroin. Mr. Hernandez further asserts that
his sentence as a career offender was the result of his counsel’s ineffective representation. Finally,
he argues that he had the right to withdraw his guilty plea because the Court deferred acceptance
of his plea agreement pending review of the presentence investigation report.
In response, the United States points to the plea colloquy, wherein Mr. Hernandez set forth
a factual basis for his plea, as well as assuring the Court that he was competent to plead guilty and
was doing so knowingly and intelligently. The United States contends that the appellate waiver
bars further argument or consideration related to Mr. Hernandez’s career offender designation or
the denial of his motion to withdraw his guilty plea. After summarizing the record, particularly
Mr. Hernandez’s responses to questions during both the plea and the sentencing hearings, the
United States contends that there is no evidence to support the ineffective assistance of counsel
claim. Finally, the United States notes Mr. Callaghan’s success in negotiating for the United States
to dismiss the 21 U.S.C. §851 Information, which would have increased both the statutory
maximum and the Guidelines range, and his success in obtaining a downward departure.
As an initial matter, the Court finds the Petitioner’s argument that he was entitled to
withdraw his plea for any reason to be unavailing. While the Court deferred acceptance of the
plea agreement until the sentencing hearing in order to review the presentence investigation report,
the Court accepted the plea of guilty and adjudged Mr. Hernandez guilty at the time of the plea
hearing. Thus, Rule 11 permits withdrawal of the plea only if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The Court found that
5

Mr. Hernandez had not set forth legitimate grounds for withdrawal of his plea and denied the
motion. Given the appellate waiver contained in the plea agreement signed by Mr. Hernandez,
whether the Court erred in denying the motion is not cognizable unless the plea itself was
involuntary or the denial resulted from ineffective assistance of counsel. Mr. Hernandez has not
shown evidence of either circumstance.
Mr. Hernandez waived the right to challenge his sentence or conviction on collateral attack,
with the exception of claims of ineffective assistance of counsel, and so the Court will focus on
the ineffective assistance allegations. The Court finds that the record is sufficiently clear to permit
a ruling without further discovery or a hearing.
Criminal defendants are entitled to “reasonably effective assistance” of counsel, evaluated
based on “an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–
88 (1984). “To prove a claim of ineffective assistance of counsel, a defendant must show (1) ‘that
counsel’s performance was deficient,’ and (2) ‘that the deficient performance prejudiced the
defense.’” United States v. Woodard, 640 F. App’x 259, 261 (4th Cir. 2016) (unpublished) (citing
and quoting Strickland, 466 U.S. at 687). In guilty plea cases, “where the alleged error of counsel
is a failure to investigate or discover potentially exculpatory evidence, the determination whether
the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will
depend on the likelihood that discovery of the evidence would have led counsel to change his
recommendation as to the plea.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). To evaluate whether
the alleged error(s) of counsel caused the defendant to plead guilty, the court must consider
“whether the evidence likely would have changed the outcome of a trial.” Id.

6

In general, defendants are bound by the statements made under oath during a Rule 11 plea
hearing. United States v. Lemaster, 403 F.3d 216, 220–22 (4th Cir. 2005). “[I]n the absence of
extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner’s
sworn statements made during a properly conducted Rule 11 colloquy are always ‘palpably
incredible’ and ‘patently frivolous or false,’” such that no hearing is necessary to resolve the
motion. Id. (internal citations and quotations removed) (citing Crawford v. United States, 519
F.2d 347, 350 (4th Cir.1975)).
Mr. Hernandez asserts that he reviewed footage of the controlled buy of heroin with the
Assistant Federal Public Defender originally appointed to represent him and believes the footage
includes a statement by the confidential informant that he purchased the heroin from someone
other than Mr. Hernandez. Mr. Hernandez and Mr. Callaghan communicated regarding the
evidence, and Mr. Callaghan assured him that he fully reviewed the footage. The record is clear
that Mr. Callaghan spent more than adequate time on this case, including time spent
communicating with his client. The record from the plea hearing is also clear. Mr. Hernandez
expressed satisfaction with his counsel and gave responses supporting the conclusion that he was
competent and capable of entering an informed plea, that he understood his rights and the charges
against him, and that his plea was knowing and voluntary.
Mr. Hernandez also put forth a factual basis for his guilty plea. He signed a Stipulation of
Facts stating that, on or about December 2, 2014, he “distributed a quantity of heroin . . . to a CI
working with law enforcement officers.” (Plea Agreement, Document 39.) During the plea
hearing, after the Court described the elements of the offense, he stated that he “sold the heroin”
on “December 2, 2014” to “[a] guy named Tattoo, goes by Tattoo.” (Plea Tr. at 12:4–12:9.) He
7

indicated that the transaction was arranged on the internet and took place at a Go-Mart in Beckley.
He stated that he sold one or two stamps of heroin in return for “$40 or $50.” (Id. at 13:1.) The
United States described its evidence that “the defendant sold a quantity of heroin to a CI who was
working with law enforcement officers,” including stating that it would introduce the case agent,
the confidential informant, and the chemist who found that the substance was heroin, as well as
the audio and video recording of the buy. (Id. at 13:17–13:25.) Mr. Hernandez agreed that the
United States’ description of the evidence was accurate, without challenging the suggestion that
the video footage and the confidential informant’s testimony would support a conviction.
Because “in the absence of extraordinary circumstance, the truth of sworn statements made
during a Rule 11 colloquy is conclusively established, and a district court should, without holding
an evidentiary hearing, dismiss any §2255 motion that necessarily relies on allegations that
contradict the sworn statements,” the Court finds that the motion regarding ineffective assistance
of counsel and actual innocence should be denied. Mr. Hernandez’s motion rests on a version of
the facts and evidence of the offense that squarely contradicts the detailed admissions made during
his Rule 11 plea hearing. He offers no explanation for his failure to inform the Court that he did
not distribute the heroin or that he believed the footage of the controlled buy was exculpatory—
footage which he asserts he reviewed with his previous counsel and discussed with Mr. Callaghan
prior to entering a plea. In short, there is no evidence that Mr. Callaghan failed to perform an
adequate investigation into the evidence against Mr. Hernandez and Mr. Hernandez offered sworn
admissions to the facts of the offense. Mr. Hernandez has not met the first prong of Strickland,
given the lack of evidence that Mr. Callaghan’s performance was deficient. Likewise, Mr.
Hernandez’s appellate counsel’s alleged failure to review the underlying evidence of the offense
8

cannot be considered either deficient or prejudicial in light of the content of the plea agreement,
plea hearing, and appellate waivers.
Consideration of the Petitioner’s career offender status is precluded by the waivers
contained in his plea agreement, except to the extent the Petitioner asserts that his attorney was
ineffective at sentencing. Mr. Callaghan thoroughly argued the position that Mr. Hernandez’s
West Virginia conviction for conspiracy to commit a felony did not constitute a valid predicate
offense for career offender purposes. The Court’s adverse ruling does not render Mr. Callaghan’s
representation ineffective, and the collateral attack as to any error in that ruling was waived in the
plea agreement. Therefore, Mr. Hernandez’s challenge to his sentence must be denied.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody (Document 75) be DENIED and that this matter be DISMISSED from the
Court’s docket.
The Court has additionally considered whether to grant a certificate of appealability. See
28 U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). The standard is satisfied only upon a showing
that reasonable jurists would find that any assessment of the constitutional claims by this Court is
debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683-84 (4th Cir. 2001). The Court concludes that the governing standard is not
satisfied in this instance. Accordingly, the Court DENIES a certificate of appealability.
9

The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

10

February 6, 2019