Opinion
EP-05-CA-0407-PRM, EP-03-CR-1536-PRM.
November 14, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Arnulfo Escobedo-Soltero's ("Escobedo") "Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 42] pursuant to 28 U.S.C. § 2255, filed on November 2, 2005. For the reasons discussed below, the Court concludes that Escobedo'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-03-CR-1536-PRM
On August 13, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Escobedo, charging him with Illegal Re-entry, in violation of 8 U.S.C. § 1326. With the Indictment, the Government filed a written "Notice of Intent to Seek Increased Statutory Penalty" pursuant to 8 U.S.C. § 1326(b)(2), based on Escobedo's prior felony conviction.
Escobedo decided to forego trial. By consent and accompanied by his counsel-of-record, Escobedo accordingly appeared before a United States Magistrate Judge on October 10, 2003 and entered a plea of guilty to the Indictment. On the same day, the Magistrate Judge issued findings of fact and a recommendation that the Court accept the plea. The Court subsequently adopted the Magistrate Judge's recommendation and accepted the plea on October 22, 2003. After deferring sentencing to allow for the preparation of a Presentence Report, the Court entered Judgment on January 21, 2004, sentencing Escobedo to a 77-month term of imprisonment and a 3-year term of supervised release. It additionally ordered Escobedo to pay a $100 special assessment.
Escobedo timely appealed, arguing that the prior conviction used to increase his sentence is an element of a separate offense under 8 U.S.C. § 1326 and should have been alleged in the Indictment. Because it was not included in the Indictment, Escobedo argued, his sentence therefore exceeded the 2-year maximum term of imprisonment that may be imposed for that offense. Escobedo acknowledged that the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), foreclosed his argument, but asserted that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), had cast doubt on the continuing viability of Almendarez-Torres. He therefore sought to preserve his claim for review.
The Fifth Circuit Court of Appeals rejected Escobedo's argument and affirmed the Judgment on June 23, 2004, stating that Apprendi had not overruled Almendarez-Torres, which held that: (1) the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense; and (2) the sentencing provisions of § 1326(b) do not violate due process. It further advised Escobedo that, unless and until the Supreme Court itself chose to overrule its holding, the Court of Appeals was obliged to abide by Almendarez-Torres. The Supreme Court denied Escobedo's petition for a writ of certiorari on November 1, 2004. B. Escobedo's Motion to Vacate Pursuant to 28 U.S.C. § 2255
See Escobedo v. United States, ___ U.S. ___, 125 S. Ct. 437 (2004) (denying Escobedo's petition for a writ of certiorari). The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitations period for the filing of motions pursuant to 28 U.S.C. § 2255. 28 U.S.C. § 2255 ¶ 6. October 28, 2005, the date on which Escobedo signed his Motion to Vacate, is presumptively the date on which he gave it to prison authorities for mailing to the District Clerk. There being no evidence to rebut this presumption, the Court finds that Escobedo's Motion to Vacate is therefore timely filed under the AEDPA. See Cousins v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002) (stating that, for purposes of determining the timeliness of pro se prisoner petitions under the AEDPA, a prisoner's submission is considered "filed" on the date he gives it to prison authorities for mailing).
The Court has liberally read Escobedo's Motion to Vacate, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Escobedo to argue the following. First, Esquivel asserts that his sentence was imposed in a manner that violates the Supreme Court's holding in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) (" Booker") ("Ground One"). Second, Escobedo alleges that he received ineffective assistance at sentencing ("Ground Two"). Specifically, Escobedo contends that his Court-appointed counsel, Assistant Federal Public Defender William T. Maynard ("Maynard") should have raised a Sixth Amendment objection to the Court imposing a sentence exceeding 24 months, pursuant to Apprendi. Third, Esquivel avers that the Supreme Court's holding in Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254 (2005), has overruled or somehow implicated the continuing viability of Almendarez-Torres ("Ground Three").
II. LEGAL STANDARD
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, 231-32 (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.
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." With the above principles in mind, the Court turns to the merits of Escobedo's claims. III. GROUND ONE
U.S.C.S. § 2255 Proc. R. 4(b) (2004).
As previously noted, in Ground One of his Motion to Vacate, Escobedo alleges that he is entitled to relief under Booker's holding. After due consideration, however, the Court concludes that Escobedo is mistaken. Although the Fifth Circuit Court of Appeals has yet to determine whether Booker applies retroactively to convictions that were already final when the rule was announced, the other circuit courts of appeals to consider the matter have uniformly held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. For the reasons discussed below, this Court agrees with the reasoning set forth by the Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuit Courts of Appeals and accordingly determines that Escobedo is clearly not entitled to relief under Booker's holding.
See Lloyd v. United States, 407 F.3d 608, 614 (3rd Cir. 2005) (joining its sister circuit courts of appeals in holding that Booker does not apply retroactively to initial motions under 28 U.S.C. § 2255 where the judgment was final as of January 12, 2005); Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before January 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (concluding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
A. Booker' s Holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised 18 U.S.C. § 3553(b)(1), the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While a district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of New Rules Announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see generally Apprendi v. New Jersey, 530 U.S. 466 (2000) (discussing the Sixth Amendment right to trial by jury and the reasonable doubt standard in criminal prosecutions).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
Id. at ___, 125 S. Ct. at 748.
Id. at ___, 125 S. Ct. at 757.
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, 542 U.S. 348, ___, 124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow.
Id. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___, 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___, 124 S. Ct. at 2523.
A district judge may determine whether a new decision of the Supreme Court applies retroactively and thus whether a collateral attack pursuant to 28 U.S.C. § 2255 is timely under 28 U.S.C. § 2255 ¶ 6(3). C. Booker Represents a New Procedural Rule That Is Not Retroactive to Cases on Collateral Review.
Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001); see also Wiegand v. United States, 380 F.3d 890, 892-93 (6th Cir. 2004) (stating that the district court should decide retroactivity in the first instance); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("Every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255 ¶ 6(3).").
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523 (distinguishing substantive from procedural rules and discussing why a rule, prohibiting a sentencing judge from finding an aggravating factor that is necessary for the imposition of the death penalty, is properly classified as procedural in nature).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Guzman, 404 F.3d at 144 (citing Schriro for the proposition that Booker announced a new procedural rule that does not apply retroactively to already-final judgments); Price, 400 F.3d at 845 (concluding that, under the logic of Schriro, the rule announced in Booker is procedural and does not apply retroactively to already-final judgments); Humphress, 398 F.3d at 856 (comparing the rule announced in Booker to the rule analyzed in Schriro and concluding that the rule announced in Booker is procedural); Varela, 400 F.3d at 868 (concluding that the rule announced in Booker is procedural rather than substantive); McReynolds, 397 F.3d at 481 (holding that the rule announced in Booker is clearly procedural rather than substantive and therefore does not apply retroactively).
the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, petitioners whose judgments became final before January 12, 2005 may not claim relief pursuant to Booker. D. Discussion
See Lloyd, 407 F.3d at 614 (holding that Booker does not apply retroactively to motions pursuant to 28 U.S.C. § 2255 when the judgment under attack was already final when rule was announced); Guzman, 404 F. 3d at 144 (concluding that procedural rule announced in Booker does not operate retroactively to provide relief from judgments that were already final when Booker was released); Price, 400 F.3d at 845 (stating that Booker represents a new procedural rule that does not extend retroactively to relieve defendants from judgments that were final as of Booker's date of release); Humphress, 398 F.3d at 856 (holding that the rule announced in Booker is procedural and does not apply retroactively to judgments that were already final as of the date of Booker's release); Varela, 400 F.3d at 868 (concluding that the Booker holding represents a new procedural rule that does not function retroactively to provide relief from already-final judgments); McReynolds, 397 F.3d at 481 (holding that Booker announced a new procedural rule, which does not apply retroactively to judgments that became final before January 12, 2005, the date of Booker's release).
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, Escobedo's Judgment became final on November 1, 2004, the day on which the Supreme Court denied his petition for a writ of certiorari and more than a year before Booker's release. Because the rule announced in Booker does not apply retroactively, Escobedo is therefore ineligible for relief under its holding. Moreover, even if Escobedo's judgment had not already been final upon Booker's release, he would still not be entitled to relief on the merits of his argument. As discussed in earlier in this Memorandum Opinion and Order, Escobedo's punishment was enhanced due to a prior felony conviction. Under Booker, it is constitutionally permissible to use prior convictions to enhance a defendant's punishment. Because Booker provides Escobedo with no legal basis for relief, the Court concludes that it should dismiss Ground One of his Motion to Vacate with prejudice.
See Linkletter v. Walker, 381 U.S. 618, 622 n. 5 (1965) (stating that a conviction is final when the availability of direct appeal is exhausted and the time for filing a petition for a writ of certiorari has elapsed or the Supreme Court has denied certiorari review), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987), as stated in Harper v. Va. Dep't of Taxation, 509 U.S. 86, 95 (1993).
See Booker, 542 U.S. at ___, 125 S. Ct. at 756 (reaffirming the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), by holding that "[a]ny fact ( other than a prior conviction), which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.") (emphasis added).
IV. GROUND TWO
Escobedo contends that Maynard rendered ineffective assistance at sentencing because he failed to enter an Apprendi objection challenging the imposition of a sentence greater than 24 months. The Court first considers the applicable legal standard.
A. Legal Standard — Ineffective Assistance of Counsel Claims
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner 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 v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
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) (explaining 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).
After reviewing the record associated with cause no. EP-03-CR-1536-PRM, the Court finds that there is no factual basis for Escobedo's claim. The record clearly shows that Maynard, filed "Defendant's Objection to Sentence Greater Than Two Years, and Brief in Support (Apprendi)" (" Apprendi Objection") [Docket no. 23] on October 17, 2003. Therein, he argued that the Court would violate the holding of Apprendi if it sentenced Esobedo to a term of imprisonment exceeding 24 months. Moreover, the plea hearing was transcribed for purposes of direct appeal. The transcript of that proceeding reveals that the Court acknowledged Maynard's Apprendi challenge but summarily denied it without entertaining argument, citing binding Fifth Circuit precedent. Because Maynard did object at sentencing on the basis of Apprendi, the Court finds that Escobedo has failed to show, as it is his burden to do, that Maynard performed deficiently. Escobedo's failure to meet the first prong of Strickland makes it unnecessary to consider whether he has met his burden with respect to the second prong. Ground Two is accordingly dismissed with prejudice.
Plea Tr. 3, ll. 10-12.
V. GROUND THREE
In Ground Three of his Motion to Vacate, the Court understands Escobedo to argue that the Supreme Court's holding in Shepard overruled its earlier holding in Almendarez-Torres. Escobedo's reliance on Shepard is misplaced, because that opinion did not overrule Almendarez-Torres. A. Shepard' s Holding
Title 18 U.S.C. § 924, also known as the Armed Career Criminal Act ("the ACCA"), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. Under the ACCA, burglary constitutes a violent felony only if the defendant commits the offense in a building or enclosed space ( i.e., "generic burglary") and does not extend to offenses committed in a boat or a vehicle. Taylor v. United States, 495 U.S. 575 (1990), sets forth the materials a district court may consider when determining whether a defendant's previous burglary conviction, after a jury trial, counts as a violent felony under the ACCA. The district judge must normally take a categorical approach, looking only to the fact of conviction and the statutory definition of the prior offense. However, in a narrow range of cases where the State defines burglary more broadly than the ACCA and the jury was actually required to find all the elements of generic burglary, the district judge may depart from the categorical approach by looking to the charging document and jury instructions. If the charging document and jury instructions show that the defendant was charged only with burglary of a building and that the jury necessarily had to find an entry of a building to convict, then the conviction qualifies as a predicate under the ACCA. Shepard concerns the limits Taylor places on the district court's inquiry when the defendant's prior conviction resulted from a guilty plea rather than a jury trial. Reginald Shepard ("Shepard") pleaded guilty to an Indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He had four prior convictions under a Massachusetts burglary statute that broadly defined the offense, extending it to entries into boats and cars, as well as buildings and other structures. In each action, the state complaint simply tracked the language of the statute. The complaints thus contained no detailed allegations regarding the manner in which Shepard committed the offense. He pleaded guilty in each case.
Shepard, ___ U.S. at ___, 125 S. Ct. at 1257.
Id. More specifically, "burglary" as listed in § 924(e)(2)(B)(ii) means the "unlawful or unprivileged entry into, or remaining in, a building or structure, with the intent to commit a crime." Taylor v. United States, 495 U.S. 575, 599 (1990).
Shepard, ___ U.S. at ___, 125 S. Ct. at 1257-58.
Id. at ___, 125 S. Ct. at 1258.
Id. at ___, 125 S. Ct. at 1257-58.
Id. at ___, 125 S. Ct. at 1258.
Id. at ___, 125 S. Ct. at 1257.
Id. at ___, 125 S. Ct. at 1257.
Shepard, ___ U.S. at ___, 125 S. Ct. at 1258.
Id. at ___, 125 S. Ct. at 1258.
At sentencing, the Government argued that Shepard's four Massachusetts burglary convictions rendered him subject to the ACCA's 15-year mandatory minimum term of imprisonment. The Government urged the district court to examine the police reports and applications for the issuance of a complaint associated with each offense in order to determine whether Shepard's convictions qualified as violent felonies under the ACCA. The district court refused, finding that Taylor forbade it from considering these materials. The district court further concluded that, under an investigation within the bounds of Taylor, none of Shepard's prior burglary convictions could be considered predicates for the mandatory minimum sentence.
Id. at ___, 125 S. Ct. at 1258.
Id. at ___, 125 S. Ct. at 1258.
Id. at ___, 125 S. Ct. at 1258.
Id. at ___, 125 S. Ct. at 1258.
On certiorari review, the Supreme Court noted that
In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of the factual basis for the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea has "necessarily" rested on the fact identifying the burglary as generic, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case.
Id. at ___, 125 S. Ct. at 1259-60 (internal citations omitted).
Accordingly, the Shepard Court held that, in the context of a prior burglary conviction after a guilty plea, the district court's inquiry under the ACCA is limited as follows. To determine whether a defendant who pleaded guilty to violating a nongeneric burglary statute necessarily admitted elements of the generic offense, the district court may consider only: (1) the terms of the charging document; (2) the terms of a plea agreement or transcript of colloquy between the judge and the defendant, in which the defendant confirmed the factual basis for the plea; and (3) some comparable judicial record of this information. B. Discussion Shepard did not overrule Almendarez-Torres. Unless and until the Supreme Court itself chooses to overrule its holding, this Court is obliged to abide by Almendarez-Torres. The Court will accordingly dismiss Ground Three of Escobedo's Motion to Vacate with prejudice.
Id. at ___, 125 S. Ct. at 1263.
VI. 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 the parties' pleading, the Court concludes that jurists of reason would not debate whether Escobedo 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 Escobedo's claims for relief.
VII. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Arnulfo Escobedo-Soltero's Motion to Vacate pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Arnulfo Escobedo-Soltero's "Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" [Docket No. 42] pursuant to 28 U.S.C. § 2255, filed on November 2, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Arnulfo Escobedo-Soltero 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 Arnulfo Escobedo-Soltero's "Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" pursuant to 28 U.S.C. 2255, filed on November 2, 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 Arnulfo Escobedo-Soltero's "Motion 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 Arnulfo Escobedo-Soltero is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.