Opinion
Nos. EP-05-CA-0245-PRM, EP-04-CR-2188-PRM.
December 27, 2005.
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Gilberto Chavarria-Esparza's ("Chavarria") pro se "Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 25], filed in the above-captioned cause on June 29, 2005. For the reasons discussed below, the Court concludes that Chavarria'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-2188-PRM
On October 13, 2004, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Chavarria, 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 Enhanced Statutory Penalty pursuant to 8 U.S.C. 1326(b)(2). Chavarria decided to forego trial, choosing instead to accept a plea agreement negotiated by his Court-appointed counsel, Joseph J. Rey, Jr. ("Rey") and the attorney for the Government. The signed plea agreement was filed on December 1, 2004.
The agreement required Chavarria to make several concessions. First, Chavarria consented to plead guilty to Count One of the Indictment. Second, Chavarria agreed to have his sentence determined pursuant to the United States Sentencing Guidelines ("the Guidelines"). As part of agreeing to have his sentence determined under the Guidelines, Chavarria waived any right to have his sentence determined solely on the basis of facts alleged in the Indictment or only on the basis of facts found by a jury beyond a reasonable doubt. The waiver extended to any facts that would determine Chavarria's offense level under the Guidelines, including facts that would support any specific offense characteristics, enhancements, or adjustments.
Third, Chavarria pledged to waive his right to directly appeal or collaterally attack his sentence on any ground, with the following exceptions. Under the terms of the agreement, Chavarria could appeal the Court's decision to depart upward from the otherwise applicable punishment range, pursuant to United States Sentencing Guidelines § 5K2.0. The terms of the agreement additionally allowed Chavarria to challenge his sentence in a motion pursuant to 28 U.S.C. § 2255, provided that the claims in any such motion alleged that Chavarria' sentence was the result of prosecutorial misconduct of a constitutional dimension or ineffective assistance of counsel. Lastly, the agreement required Chavarria to admit that the factual basis offered by the Government to support his guilty plea was true.
Accompanied by Rey, Chavarria accordingly appeared before the Court on December 1, 2004 for rearraignment and entry of a guilty plea to the Indictment. The Court accepted his plea, finding that it was knowing and voluntary, and deferred sentencing to allow for the preparation of a Presentence Investigation Report ("Presentence Report"). The Court entered final judgment on January 25, 2005, sentencing Chavarria to a 24-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Chavarria to pay a $100 special assesment. Chavarria did not appeal.
B. Chavarria's Motion to Vacate Pursuant to 28 U.S.C. § 2255
The Court has liberally read Chavarria's Motion to Vacate, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Chavarria to raise the following challenges to his sentence. First, Chavarria contends that the Court imposed his sentence in violation of United States v. Booker, 543 U.S. 220 (2005) ("Claim One"). Second, Chavarria alleges that Rey rendered ineffective assistance at sentencing because he did not review the Presentence Report with him or explain the proceedings ("Claim Two").
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 CHAVARRIA'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 Chavarria's guilty plea and plea agreement 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 Chavarria, 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).
United States v. Owen, 996 F.2d 59, 60 (5th Cir. 1993) (per curiam).
Moreover, in accepting the plea agreement, Chavarria specifically agreed to waive his right to contest or collaterally attack his sentence by means of any post-conviction proceeding under 28 U.S.C. § 2255, except on the basis of: (1) prosecutorial misconduct; (2) ineffective assistance of counsel; or (3) an upward departure by the Court pursuant to United States Sentencing Guideline § 5K2.0.
It is well-settled that an informed and voluntary waiver of post-conviction relief under 28 U.S.C. § 2255 "is effective to bar such relief." However, the Fifth Circuit has held that a waiver of appeal may not be enforced against a defendant who raises a challenge in a § 2255 Motion who claims that ineffective assistance of counsel rendered the waiver itself involuntary. Nonetheless, unless the alleged ineffective assistance of counsel "directly affected" the validity of the waiver or the plea itself, the claim for ineffective assistance of counsel is waived. Here, Chavarria does not contend that his guilty plea was involuntary and he is therefore bound by the express waivers of appellate rights contained in the plea agreement.
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).
United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).
With these principles in mind, the Court concludes that the terms of Chavarria's plea agreement foreclose review of his claim that the Court sentenced him in violation of Booker ( i.e., Claim One), as Chavarria explicitly waived the basis for a Booker challenge and the claim does not implicate the performance of counsel, prosecutorial misconduct, or an upward departure pursuant to United States Sentencing Guidelines § 5K2.0. Claim One is accordingly dismissed with prejudice.
The Court additionally notes that Claim One is not cognizable in a motion pursuant to 28 U.S.C. § 2255. See United States v. Gentry, No. 04-11221, 2005 U.S. App. LEXIS 26883, *14 (5th Cir. Dec. 8, 2005) (holding that the new procedural rule announced in Booker does not apply retroactively to initial § 2255 motions). Furthermore, Chavarria's claim would fail on the merits even if he were otherwise eligible for relief under Booker's holding. The statutory maximum term of imprisonment for the offense charged in Chavarria's Indictment is 24 months. See 8 U.S.C. § 1326(a) (stating that the maximum term of imprisonment for simple illegal re-entry is a term of two years). Because the Court only sentenced Chavarria to a 24-month term of imprisonment, it did not exceed the statutory maximum penalty.
In contrast, the Court finds that the plea agreement does not foreclose review of Chavarria's claim that Rey rendered ineffective assistance at sentencing ( i.e., Claim Two), as the terms of the agreement specifically excepted such challenges. The Court now turns to the merits of Chavarria's remaining claim.
IV. THE MERITS OF CHAVARRIA'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).
Chavarria claims that Rey was constitutionally ineffective at sentencing because he did not explain the terms of the plea agreement or the proceedings to his client. For the reasons discussed below, the Court finds that Chavarria has failed to carry his burden under either prong of Strickland.
First, the Court finds that the record does not support Chavarria's contention that Rey performed deficiently. Chavarria's representations at sentencing, in which he affirmed that Rey had reviewed the Presentence Report with him, flatly contradict his current allegations. Nothing in Chavarria's pleadings persuade the Court that it should give his current self-serving allegations greater weight than his sworn representations in open court.
See Blackledge v. Allison, 431 U.S. 63, 73 (1977) (stating that solemn declarations in open court carry a strong presumption of veracity); see also United States v. Cothron, 302 F.3d 279, 283-84 (5th Cir. 2002); United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (crediting district court's determination, made during the plea colloquy, that the defendant had not been pressured, rather than the defendant's later self-serving statements); United States v. Abreo 30 F.3d 29, 31 (5th Cir. 1994) (placing great weight on defendant's statements during plea colloquy).
Moreover, the Court finds that Chavarria has failed to show prejudice flowing from Rey's purported errors. Chavarria does not contend that there were errors in the Presentence Report and thus has failed to show how Rey's alleged shortcomings adversely affected him at sentencing. Claim Two 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).
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 Chavarria's pleading, the Court concludes that jurists of reason would not debate whether Chavarria 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 Chavarria's claims for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Gilberto Chavarria-Esparza's Motion to Vacate pursuant to 28 U.S.C. § 2255 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 Gilberto Chavarria-Esparza'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. 25], filed on June 29, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Gilberto Chavarria-Esparza 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 Gilberto Chavarria-Esparza'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 June 29, 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 Gilberto Chavarria-Esparza'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 Gilberto Chavarria-Esparza 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.