Opinion
EP-05-CA-0360-PRM, EP-04-CR-2726-PRM.
September 26, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Andres Asevedo-Lara's ("Asevedo") pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence" ("Motion to Vacate") [Docket No. 24], filed in the above-captioned cause on September 26, 2005. For the reasons discussed below, the Court concludes that Asevedo's Motion to Vacate should be summarily dismissed pursuant to Rule 4(b) of the Rules Governing § 2255 Cases. The Court will additionally decline to certify his issues for appeal.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal Cause No. EP-04-CR-2726-PRM
On December 15, 2004, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Asevedo, charging him with Illegal Re-entry, in violation of 8 U.S.C. § 1326. With the Indictment, the Government filed a "Notice of Intent to Seek Increased Statutory Penalty," pursuant to 8 U.S.C. § 1326(b)(2), due to Asevedo's previous aggravated felony conviction.
Asevedo decided to forego trial. By consent and accompanied by his Court-appointed counsel, Assistant Federal Public Defender Reginaldo Trejo, Jr. ("Trejo"), Asevedo appeared before a United States Magistrate Judge on February 11, 2005 and pleaded guilty to the Indictment. The Magistrate Judge entered findings on fact that same day, recommending that the Court accept Asevedo's guilty plea. The Court adopted the Magistrate Judge's recommendation in an order dated March 8, 2005 and deferred sentencing to allow for the preparation of a Presentence Investigation Report. The Court entered final judgment on April 12, 2005, sentencing Asevedo to a 41-month term of imprisonment and a 3-year term of supervised release. It additionally ordered Asevedo to pay a $100 special assessment. Asevedo did not appeal.
B. Asevedo's Motion to Vacate
The Court has liberally read Asevedo's somewhat cryptic Motion to Vacate, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Asevedo to raise the following challenges to his conviction. First, Asevedo argues that his guilty plea was involuntary due to Trejo's ineffective assistance ("Claim One"). That is, Asevedo appears to argue that Trejo was ineffective because he strongly advised Asevedo to plead guilty, without first investigating Asevedo's case to determine whether there was a defense to the charges. Second, Asevedo asserts that his conviction was obtained by the use of evidence secured through an arrest that was unlawful because it was not based on probable cause ("Claim Two"). Third, Asevedo, a Mexican citizen, alleges that his prosecution and conviction for Illegal Re-entry is discriminatory in light of the United States' asylum policy regarding Cuban nationals who make it to dry land within the United States ("Claim Three"). Fourth, Asevedo avers that his conviction was obtained through a violation of his privilege against self-incrimination ("Claim Four"). Fifth, Asevedo argues that he was denied his right to trial and to confront the witnesses against him ("Claim Five"). Lastly, Asevedo asserts that his conviction is illegal because he was not allowed to contact or enlist the aid of the Mexican embassy ("Claim Six").
II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 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." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." III. THE EFFECT OF ASEVEDO'S GUILTY PLEA AND PLEA AGREEMENT
U.S.C.S. § 2255 Proc. R. 4(b) (2004).
Before proceeding further, the Court will pause to consider the effect of Asevedo's guilty plea on his present claims. It is well-established that criminal defendants have only a limited ability to challenge a conviction entered pursuant to a guilty plea:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 770 (1970)].
Tollet v. Henderson, 411 U.S. 258, 267 (1973).
Although a criminal defendant, such as Asevedo, who pleads guilty may challenge jurisdictional defects which dispute "the very power of the State to bring the defendant into court to answer the charge against him," he waives his right to challenge all non-jurisdictional defects preceding the plea.
Blackledge v. Perry, 417 U.S. 21, 30 (1974).
See United States v. Owen, 996 F.2d 59, 60 (5th Cir. 1993) (per curiam).
With these principles in mind, the Court concludes that Asevedo's guilty plea forecloses review of all but one of his six claims. The guilty plea does not foreclose review of Claim One ( i.e., Asevedo's claim that his plea was involuntary due to Trejo's ineffective assistance), as the claim goes to the voluntariness of the plea itself and implicates the performance of counsel. In contrast, Asevedo's remaining claims allege non-jurisdictional error occurring before the entry of his plea and are therefore barred. Claims Two through Six are accordingly dismissed with prejudice. The Court now turns to the merits of Asevedo's remaining claim.
The Court additionally notes that even if Claims Two through Six were not barred from review by Asevedo's guilty plea, he would still not be entitled to have the merits of these claims reviewed in this collateral appeal. The Court finds that the record was sufficiently developed for Asevedo to have raised Claims Two through Six in a direct appeal, but he neglected to do so. He has consequently waived these claims. See Gaudet, 81 F.3d at 589 (stating that a motion pursuant to § 2255 is reserved for claims that could not have been raised on direct appeal).
IV. THE MERITS OF ASEVEDO'S REMAINING CLAIM A. Legal Standard — Ineffective Assistance of Counsel Claims
An ineffective assistance of counsel claim has two components. First, the defendant must show that counsel performed deficiently. To establish deficient performance, a defendant must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687.
Wiggins, 539 U.S. at 521.
Id.
Id. (quoting Strickland, 466 U.S. at 688).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
Strickland, 466 U.S. at 687-91.
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (explaining the compelling policy considerations behind Strickland's contemporary, rather than retrospective, assessment of counsel's conduct); Burger v. Kemp, 483 U.S. 776, 789 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel's decisions based on the then-existing circumstances and counsel's perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel's strategic choices).
Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to such testimony by presenting its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (holding that clairvoyance is not a required attribute of effective representation).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. B. Discussion
Id. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d 922, 928 (5th Cir. 1993) (stating that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test); Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992) (stating that a court evaluating a claim of ineffective assistance need not address the components of the applicable test in order, and if a defendant fails to carry his burden as to one component of the test, the court need not address the other component); Pierce, 959 F.2d at 1302 (asserting that an insufficient showing of prejudice pretermits addressing the adequacy prong of the Strickland test for ineffective assistance).
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
Asevedo faults Trejo for failing to investigate his case, including possible defenses to the charges. For the reasons discussed below, the Court finds that Asevedo has failed to carry his burden under the Strickland test for ineffective assistance of counsel.
Assuming for the sake of argument that Trejo did not investigate Asevedo's case or look for possible defenses, the Court finds that Asevedo has failed to demonstrate prejudice flowing from Trejo's alleged shortcomings. Asevedo utterly fails to identify what facts or defenses an investigation would have revealed. Asevedo moreover does not explain how, given the strength of the Government's evidence against him and the high likelihood of a guilty verdict if he went to trial, the results of the investigation would have persuaded him to stand trial and risk losing favorable adjustments at sentencing for acceptance of responsibility. Since Asevedo must demonstrate both deficient performance and prejudice to prevail on his ineffective assistance claim against Trejo, Asevedo's failure to show prejudice flowing from Trejo's alleged deficiencies makes it unnecessary for the Court to consider whether Asevedo has met the remaining prong of the applicable legal test. Claim One is accordingly dismissed with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review solely to those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998) (stating that the CoA requirement supersedes the previous requirement for a CPC to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA).
See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253(c)(2) (West 2004).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002) (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issues on which CoA is granted).
See Crutcher, 301 F.3d at 658 n. 10 (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Lackey, 116 F.3d at 151 (holding that, in the context of a challenge to a district court's order denying habeas corpus relief, the scope of appellate review is limited to the issues on which a CoA is granted); Hill, 114 F.3d at 80 (discussing the limited scope of appellate review in habeas corpus actions); Muniz, 114 F.3d at 45 (explaining the limitations upon the scope of appellate review in habeas corpus cases); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997) (discussing the limited scope of appellate review in habeas corpus actions); 28 U.S.C.A. § 2253(c)(3) (West 2004) (setting forth the narrow scope of appellate review in habeas corpus matters).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Asevedo's pleading, the Court concludes that jurists of reason would not debate whether Asevedo has stated a valid claim or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding Asevedo's claims for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Andres Asevedo-Lara's Motion to Vacate should be denied and this matter dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Andres Asevedo-Lara's pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" [Docket No. 24], filed on September 26, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Andres Asevedo-Lara is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order dismissing, with prejudice, Petitioner Andres Asevedo-Lara's pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody," filed on September 26, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claims. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Accordingly,IT IS ORDERED that Petitioner Andres Asevedo-Lara's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Andres Asevedo-Lara is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.
The Clerk shall close this case.