Opinion
EP-05-CA-0474-PRM, EP-04-CR-1334-PRM.
June 20, 2006
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Johan Fehr's ("Fehr") pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 65], filed in the above-captioned cause on December 19, 2005. After review, the Court finds that all but one of Fehr's claims are procedurally barred from review by virtue of his guilty plea and his failure to raise the claims on direct appeal. Furthermore, the record directly contradicts the factual basis for Fehr's remaining ineffective assistance claim. Accordingly, the Court concludes that Fehr's Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Fehr a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause No. EP-04-CR-1334-PRM
On June 23, 2004, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Fehr and a co-defendant, charging them with conspiracy to possess 100 kilograms or more of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846 ("Count One"), and possession of 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(vii) ("Count Two"). Fehr, a Canadian citizen who was detained without bond by order of a United States Magistrate Judge, decided to forego trial. On September 8, 2004, by consent and accompanied by his retained counsel, Manuel J. Barraza ("Barraza"), Fehr accordingly appeared before a United States Magistrate Judge and pleaded guilty to the Indictment. The Magistrate Judge entered findings of fact the following day, recommending that the Court accept Fehr's plea as knowing and voluntary. The Court adopted the Magistrate Judge's recommendation, accepted Fehr's plea, and deferred sentencing to allow for the preparation of a Presentence Investigation Report. The Court entered its Final Judgment on December 17, 2004, sentencing Fehr to a 41-month term of imprisonment and a 3-year term of non-reporting supervised release on both counts of the Indictment, to run concurrently. The Court additionally ordered Fehr to pay a $200 special assessment.
Fehr timely challenged his conviction in a direct appeal, arguing that the Court committed reversible error under United States v. Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a mandatory application of the sentencing guidelines. The Fifth Circuit affirmed Fehr's conviction and sentence in a judgment dated November 9, 2005.
B. Fehr's Motion to Vacate Pursuant to 28 U.S.C. § 2255
The Court has read Fehr's Motion to Vacate liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Fehr to raise the following claims for relief. First, Fehr contends that the Magistrate Judge improperly detained him without bond, because Fehr had the resources to satisfy a reasonable bond amount and had no disqualifying convictions ("Ground One"). Fehr argues that detaining him without bond thus violated his Sixth Amendment right to a fair trial. Second, Fehr states that no one informed him of his right to contact the Canadian consulate ("Ground Two"). Third, Fehr asserts that the Government violated the Speedy Trial Act ("Ground Three"). Fourth, Fehr avers that Barraza rendered ineffective assistance of counsel ("Ground Four"). Specifically, Fehr contends that Barraza should have filed a motion to quash the Indictment, appealed when the Magistrate Judge denied Fehr bond, and notified Fehr of his right to contact the Canadian consulate. Fehr claims that Barraza also performed deficiently by not providing Fehr with any documents and by telling Fehr that Count One would not be included in his plea agreement. Fifth, Fehr argues that his plea was involuntary because, before questioning him, the government officials who arrested Fehr did not tell him that he had right to contact the Canadian consulate ("Ground Five"). Lastly, Fehr argues that the Court sentenced him based on an erroneous amount of contraband ("Ground Six").
As the Court notes and will discuss in Part IV.B. of this Memorandum Opinion, the record shows that Fehr pleaded guilty to both counts of the Indictment, without benefit of a plea agreement.
II. THE EFFECT OF FEHR'S GUILTY PLEA
Before proceeding further, the Court will pause to consider the effect of Fehr'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). "Whether a plea of guilty is unintelligent . . . depends as an initial matter, not on whether a court would retrospectively consider counsel's advice [to plead guilty] to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 770. To successfully claim relief, a petitioner much demonstrate "gross error" on the part of his counsel. Id. at 772.
Although a criminal defendant, such as Fehr, 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).
With these principles in mind, the Court finds that Fehr's guilty plea precludes an adjudication on the merits of all Fehr's present claims except a portion of Ground Four and Ground Six, which pertains to sentencing. That is, in Grounds One, Two, Three, and Five, Fehr alleges non-jurisdictional error occurring before the entry of his guilty plea. Turning to Ground Four, to the extent Fehr argues that Barraza rendered ineffective assistance, only Fehr's allegation that Barraza did not properly advise him about the contents of the plea agreement arguably goes to the voluntariness of Fehr's plea. Barraza's remaining alleged deficiencies involve actions or omissions occurring before the plea, do not implicate the plea's voluntariness, and are thus barred from review by Fehr's guilty plea.
The Court now considers the scope and purpose of motions pursuant to 28 U.S.C. § 2255.
III. MOTIONS TO VACATE
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).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." 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.
Withrow v. Williams, 507 U.S. 680 (1993).
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
Id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
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).
With the principles above in mind, the Court concludes that Ground Six of Fehr's Motion to Vacate is not properly before the Court. Fehr could have raised his claim of sentencing error in a direct appeal, and yet failed to do so. Moreover, alleged sentencing errors do not implicate a constitutional right and therefore are not cognizable in a collateral proceeding pursuant to 28 U.S.C. § 2255. Having concluded that only Fehr's claim that Barraza misadvised him as to the terms of the plea agreement is properly before the Court, the Court now considers the merits of that claim.
IV. THE MERITS OF FEHR'S REMAINING CLAIM 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, 539 U.S. at 521; 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 attorney'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).
Furthermore, 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 standard makes it unnecessary for a court to examine whether the petitioner has satisfied 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).
The Court has carefully reviewed Fehr's claim and the record in this cause. After due consideration, the Court finds that Fehr's argument has no factual basis. The record clearly shows that Fehr entered an unconditional guilty plea to both Counts of the Indictment. The Parties never filed a plea agreement in this cause. If the Parties did not negotiate a plea agreement, it logically follows that Barraza could not have performed deficiently by failing to advise his client about the contents of a non-existent document. Fehr's failure to establish that Barraza performed deficiently makes it unnecessary for the Court to consider whether Fehr has demonstrated that he suffered prejudice as a result of Barraza's alleged shortcomings. As Fehr has not established a claim of constitutionally ineffective assistance of counsel against Barraza and his remaining claims are not properly before the Court, the Court will thus dismiss Fehr's Motion to Vacate with prejudice, pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings.
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 to solely 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), cert. denied, 526 U.S. 1100 (1999) (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); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
Miller-El v. Cockrell, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 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) (noting the limited scope of habeas corpus review); 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 issue on which CoA granted).
See Crutcher, 301 F.3d at 658 n. 10; Lackey, 116 F.3d at 151; Hill, 114 F.3d at 80; Muniz, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
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. The petitioner must further show that jurists of reason would debate whether the 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 (2003) (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).
Id.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Fehr's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claim.
V. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Johan Fehr'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 Johan Fehr'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, 65] filed in the above-captioned cause on December 19, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Johan Fehr is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.