Opinion
A-99-CA-822 JN, (A-97-CR-106 JN).
April 5, 2001.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Juan Jose Macias Castro's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed on December 29, 1999 (Clerk's Doc. No. 57). The government filed a response on January 5, 2000 (Clerk's Doc. No. 59). Petitioner did not file a reply. The case was referred to the undersigned Magistrate Judge for a report and recommendation on the merits pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the local rules of the United States District Court for the Western District of Texas.
On January 26, 2000, Petitioner filed a motion for 45 day extension to file a Reply (Clerk's Doc. No. 60). The Court's records reflect that no order has been entered on this motion. The Court also notes that as of the date of this report (May 19, 2000), no reply has been filed. Neither the Federal Rules nor this Court's Local Rules require that a party seek leave to file a reply, and accordingly the Petitioner has been free to file a reply over the past several months, but has not done so. Accordingly, the Court DENIES Macias' motion for an extension (Clerk's Doc. No. 60) as MOOT.
I. BACKGROUND
The movant was charged in a two count indictment with re-entry of a deported alien into the United States in violation of 8 U.S.C. § 1326; and, making a false claim representing himself to be a United States citizen in violation of 8 U.S.C. § 911. Accordingly, the main issue before the jury was whether Macias was born in the United States or Mexico. The jury found in favor of the Government and convicted Macias of the above offenses on October 21, 1997. He received a 120 month term of imprisonment on count one and a 36 month term on count two to be followed by three years of supervised release. The Court also assessed a $200 mandatory fee. Macias directly appealed his conviction, which the Fifth Circuit affirmed in an unreported opinion, United States v. Castro, No. 98-50150 slip op. (5th Cir. December 19, 1998). See Government's Resp. Exh. A.
II. ISSUES PRESENTED
The Petitioner presents the following issues:
(1) Did the U.S. Attorney present improper cumulative evidence at trial?
(2) Was it error for the trial court to deny a juror request for an interpretation of a Spanish document?
(3) Did the Court violate Petitioner's due process by enhancing his sentence due to a prior aggravated felony?
(4) Was the Petitioner's sentence unconstitutionally enhanced because he did not serve the statutory minimum on an aggravated felony?
III. ANAYLSIS
A. StandardRelief under 28 U.S.C. § 2255 is generally authorized only if the sentencing court "was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or otherwise subject to collateral attack." United States v. Addonizio, 442 U.S. 178, 185 (1979). Section 2255 relief "is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal, and would, if condoned, result in a complete miscarriage of justice." United States v. Acklen, 47 F.3d 739, 741 (5th Cir. 1995). United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994); see also, United States v. Weintraub, 871 F.2d 1257, 1266 (5th Cir. 1989); United States v. Smith, 844 F.2d 203, 205-06 (5th Cir. 1988). "Because a challenge under section 2255 `may not do service for an appeal,' a movant may not raise constitutional or jurisdictional issues for the first time on collateral review without establishing `both cause for his procedural default and actual prejudice resulting from the error.'" Acklen, 47 F.3d at 741-42 (quoting United States v. Shaid, 937 F.2d 228, 231-232 (5th Cir. 1991) (en banc)).
Moreover, the purpose of a motion to vacate, set aside or correct a sentence is not to recapitulate or substitute for a direct appeal. United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076 (1992). Violations of Rule 11 that could have been raised on direct appeal may not be presented in a collateral attack upon the defendant's sentence. United States v. Timmreck, 441 U.S. 780, 783-85 (1979). Likewise, claims that a trial court violated Rule 32 in the course of imposing sentences that could have been raised on direct appeal may not be brought forward in a § 2255 proceeding. Weintraub, 871 F.2d at 1266; United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932 (1989); Smith, 844 F.2d at 205-207.
B. Cumulative Evidence
Petitioner argues the Government presented cumulative evidence at his trial which was prejudicial to his case. Petitioner attempted to raise this argument on appeal, but, relying on United States v. Jackson, 50 F.3d 1335, 1340 n. 7 (5th Cir. 1995), the Fifth Circuit did not consider the argument because it was raised for the first time in his reply brief. Similarly, the argument cannot be presented for the first time on a collateral attack on his sentence when it could have been raised on appeal. See Smith, 844 F.2d 205-206. Even if this claim were properly before the Court, the introduction of cumulative evidence constitutes harmless error. United States v. Allie, 978 F.2d 1401, 1409 (5th Cir. 1992) cert. denied, 507 U.S. 1011 (1993). Moreover, when a claim could have been presented on appeal, to raise the argument in a § 2255 motion, a defendant must show both cause for the procedural default and actual prejudice due to any such errors. United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Petitioner makes no such showing; therefore, the Court recommends the District Court deny this claim.
C. Denial of Jury Request
Petitioner argues the trial court erroneously denied a jury request for an English interpretation of Spanish documents introduced at trial. See Clerk's Doc. No. 35. This argument lacks merit for the above reasons, as it cannot be raised for the first time on a collateral attack on a sentence without a showing of prejudice and actual harm. Macias cannot show prejudice because the jury considered evidence in addition to the Mexican birth certificate and affidavit, including the testimony of live witnesses, in concluding that he was guilty of the offenses charged. In considering his appeal, the Fifth Circuit held there was sufficient evidence to allow a jury to conclude Macias was not born in the United States. See Government's Response Exhibit A. The Court recommends the District Court deny this claim.
D. Enhancement for Prior Aggravated Felony
Macias argues his sentence was improperly enhanced based on a prior aggravated felony conviction. Macias' sentence was enhanced under 8 U.S.C. § 1326(b)(2) for re-entry into the United States after being previously deported following a conviction for an aggravated felony. Macias argues the Government's notice of enhancement does not comply with the enhancement statute because it does not state he was "arrested." The Government's notice clearly states he was convicted of threatening to kill a peace officer. See Government's Response Exhibit C. Neither the enhancement statute nor the case law interpreting it requires the notice include the allegation that the Defendant was "arrested" and "convicted" of the offense on which the Government seeks to enhance the sentence under § 1326.
Macias received a 16 level increase in his offense level for the prior aggravated felony See U.S.S.G. § 2L1.2 (b)(1)(A).
Macias cites United States v. Cabrera-Teran, 168 F.3d 141 (5th Cir. 1999), for the contention that the notice must contain the phrase "arrested and deported." In Cabrera-Teran, the indictment did not contain the phrase "arrested and deported," which was at the time an element of an offense under 8 U.S.C. § 1326. Not only does Macia's indictment contain the phrase "arrested and deported," see Clerk's Doc. No. 4, § 1326 was amended effective April 1, 1997 (before Macia's re-entry on July 1, 1997), deleting reference to the phrase. See United States v. Ramirez-Gamez, 171 F.3d 236, 238 (5th Cir. 1999). Accordingly, this argument lacks merit.
E. Service of Less than One Year on Prior Conviction.
Macias further argues that the actual time he spent in prison for the prior felony was less than one year, which is less than the enhancement statute requires. Section 1326(b)(2) provides for an enhanced sentence for a deported alien that re-enters the United States without the permission of the Attorney General, if the alien's original deportation was subsequent to a conviction for the commission of an "aggravated felony." An "aggravated felony" is defined as, inter alia, a "crime of violence" punishable by imprisonment of at least one year. 8 U.S.C. § 1101(43)(F). A "crime of violence" is defined as an offense that has an element of the use, attempted use, or threatened use of physical force against a person. 18 U.S.C. § 16(a). The pre-sentence investigation report ("PSR") clearly shows Macias was convicted of threatening to kill a peace officer in 1986 and was sentenced to two years in the Department of Criminal Justice, after a sentence of five years probation was revoked. Macias did not object to this portion of the PSR at sentencing. See Clerk's Doc. No. 52. The district court may rely on the information presented in the PSR unless the defendant demonstrates it is materially untrue. United States v. Vela, 927 F.2d 197, 210 (5th Cir), cert. denied 502 U.S. 875 112 S.Ct. 214 (1991). Whether Macias was released from prison after serving less than one year is irrelevant. The judicial inquiry is whether Macias received a sentence of at least one year, United States v. Vasquez, 76 F.3d 648, 650-651 (5th Cir. 1996), and there is no dispute that he did. Accordingly, the Court recommends the District Court deny this claim.
In his motion for extension, Macias also appears to attack the merits of his underlying aggravated felony conviction for "Retaliation" for threatening to kill a peace officer. Macias does not allege he has exhausted his state remedies on his state conviction. Cf. United States v. Clark, 203 F.3d 358, 362-63 (5th Cir. 2000) (permitting movant under § 2255 to collaterally attack prior convictions used to enhance sentence when the movant had exhausted state court habeas remedies with regard to the prior convictions). Therefore, it is inappropriate for the Court to consider an attack on the merits of the underlying conviction. Even if the Court were to review Macias' collateral attack, that attack would be unsuccessful because it fails to raise any constitutional issues. Moreover, none of the arguments Macias makes (the conviction occurred 13 years ago, he had no weapon at the time of his arrest, no physical force was used, and the officer was not harmed) would even qualify as defenses to the charge of making a threat against a peace officer.
IV. RECOMMENDATION
The undersigned RECOMMENDS that the District Court DENY Petitioner's Motion to Vacate, Set Aside, or Correct Illegal Sentence under 28 U.S.C. § 2255.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within ten (10) days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S.Ct. 466, 472-74 (1985); Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
The Clerk is ORDERED to mail each party a copy of this Report and Recommendation by certified mail, return receipt requested.