Opinion
EP-04-CA-202-DB, EP-02-CR-544-DB.
October 5, 2005
MEMORANDUM ORDER AND OPINION DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Rita Hernandez' ("Hernandez") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 37], filed on May 24, 2004. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") [Docket no. 39] on June 28, 2004. Hernandez did not file a Reply. After due consideration, the Court finds that Hernandez' claims for relief are either procedurally barred or without merit. Accordingly, the Court will deny Hernandez' Motion to Vacate and dismiss this matter with prejudice. The Court will additionally deny Hernandez a Certificate of Appealability.
On October 18, 2004, nearly three months after the Government filed its Response, Hernandez submitted a document to the District Clerk entitled, "Supplement in Support of 28 U.S.C. § 2255 Motion and Reply to Government's Response to 28 U.S.C. § 2255 Motion" ("Supplement") [Docket no. 40]. Although the title of her pleading purported to present a reply to the Government's Response, in the body of the Supplement, Hernandez argued exclusively that her sentence violated the holding of Blakely v. Washington, 542 U.S. 296 (2004) (" Blakely"). In an order dated October 26, 2004 [Docket no. 41], the Court therefore construed Hernandez' Supplement as a motion for leave to amend her Motion to Vacate, pursuant to Federal Rule of Civil Procedure 15. The Court granted Hernandez' construed motion to amend to the extent of allowing her to raise an additional claim based on the Blakely ruling, but then summarily denied the new claim on the merits, pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings.
The Court notes that the Supreme Court's intervening decision in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), extending the Blakely ruling to federal sentencing, does not alter its determination regarding the merits of Hernandez' claim. Although the Fifth Circuit Court of Appeals has yet to decide the issue, this Court agrees with every circuit court of appeals to consider the matter and concludes that Booker does not apply retroactively to cases on collateral review. See 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 Jan. 12, 2005); Lloyd v. United States, 407 F.3d 608, 614 (3d. Cir. 2005) (holding that Booker does not apply retroactively to cases on collateral review); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding 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 Jan. 12, 2005."). 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.
Here, the Fifth Circuit Court of Appeals affirmed Hernandez' conviction and sentence on April 2, 2003. Because Hernandez did not thereafter seek a writ of certiorari from the Supreme Court, her judgment became final on July 2, 2003, when the 90-day period for petitioning for such a writ expired, see SUP.CT.R. 13, and well before Booker's release. Booker therefore provides Hernandez with no legal basis for relief.
I. FACTUAL AND PROCEDURAL HISTORY A. Criminal Cause No. EP-02-CR-544-DB
On March 27, 2002, the Grand Jury sitting in El Paso, Texas, returned a two-count Indictment against Hernandez, charging her with importation of five kilograms or more of a mixture or substance containing a detectable amount of cocaine, a controlled substance, in violation of 21 U.S.C. §§ 952 (a), 960(a)(1), and 960(b)(1)(B) (Count One); and possession of this same amount of cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) (Count Two). Hernandez, deciding to exercise her constitutional right to trial by jury, entered a plea of not-guilty to the Indictment on April 5, 2005. Trial began on May 20, 2002 and ended the next day when the jury returned a guilty verdict as to Count One (importation) but a not-guilty verdict as to Count to (possession with the intent to distribute).
The Court deferred sentencing to allow for the preparation of a Presentence Report ("PSR"). It entered Judgment on July 18, 2002, sentencing Hernandez to a 168-month term of imprisonment and a 5-year term of non-reporting supervised release. The Court additionally ordered Hernandez to pay a $100.00 special assessment.
Hernandez timely appealed, arguing solely that the evidence at trial was insufficient to support the jury's finding that she knew cocaine was hidden in her vehicle. The Fifth Circuit Court of Appeals affirmed her conviction in an order dated April 2, 2003. There is no record of Hernandez having sought a petition of certiorari from the Supreme Court.
B. Hernandez' Motion to Vacate
The Court has liberally read Hernandez' Motion to Vacate pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands her to raise the following claims. First, she alleges that her retained attorney, Gary J. Hill ("Hill"), rendered ineffective assistance at trial and sentencing for various reasons ("Claim One"). Second, she contends that the Government secured her conviction through a grand or petit jury that was unconstitutionally selected or empaneled ("Claim Two"). Third, she argues that the Court violated Federal Rule of Criminal Procedure 32 ("Claim Three").
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, 102 S. Ct. 1584, 1592 (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).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Further, it is well settled that a collateral challenge may not take the place of a direct appeal. If a movant 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 movant 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.
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").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. CLAIMS TWO THREE ARE PROCEDURALLY BARRED
After review, the Court concludes that the record on appeal was sufficiently developed to allow Hernandez to raise Claims Two and Three on direct appeal, and yet she did not do so. Because she gives no reason for her failure, the Court concludes that Hernandez has not shown "cause" within the meaning of the cause-and-prejudice standard. Further, she does not contest her actual guilt, but only her attorney's performance and the length of her sentence. Accordingly, the Court concludes that Hernandez is not entitled to collateral review of these claims. The Court now turns to the merits of her remaining claim.
IV. THE MERITS OF CLAIM ONE
Hernandez makes various allegations against Gary J. Hill ("Hill"), the attorney whom she retained to represent her at trial and sentencing. She states that he did not: (1) explain the trial process to her or the alternatives to standing trial; (2) show her the PSR or review it with her; (3) investigate her case and look for mitigating factors to urge at sentencing; (4) inform her of unspecified immigration consequences; (5) object to a discrepancy between the amount and type of controlled substance reported by customs agents and the figure reported in the PSR; and (6) clarify whether her previous offense were felonies or misdemeanors. 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.
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.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See 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 was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on 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 defend ant 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 presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself 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 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) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (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. With these principles in mind, the Court considers whether Hernandez has shown that she is entitled to relief. B. Discussion
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding 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 Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
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).
As set forth above, to prevail on her ineffective assistance claim, Hernandez must show both that Hill performed deficiently and that the deficient performance directly prejudiced her defense. The Court finds that Hernandez has failed to carry her burden in either respect.
To the extent Hernandez asserts that Hill was ineffective because he did not explain the trial process to her and did not inform her of unspecified immigration consequences, her claims are conclusory and therefore insufficient to sustain her claim for relief.
Inasmuch as she claims that Hill did not review the PSR with her, her allegation is not supported by the record. The transcript of the sentencing shows that when the Court asked Hill whether he had reviewed the PSR with his client, Hill answered in the affirmative. The record of the proceeding is consistent with Court's independent recollection that Hernandez stood silent while Hill made this representation to the Court. The Court additionally did not observe any non-verbal cues to suggest that Hernandez disagreed with Hill's statement. Hernandez' representations at sentencing are entitled to great weight. The Court finds that she has failed to show that her present self-serving statements are entitled to greater deference that her sworn representations to the contrary at the sentencing hearing.
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).
Insofar as Hernandez avers that Hill did not look for mitigating factors to reduce her sentence, her claims are again conclusory. She fails to identify any mitigating factors that Hill could have raised and how his failure to bring them to the Court's attention prejudiced her. Hernandez cannot escape her burden of demonstrating deficient performance and prejudice by merely stating her conclusion.
Hernandez is mistaken when she asserts that there was a discrepancy between the amount of cocaine reported by the customs agents who apprehended her (54.9 pounds) and the amount stated in the PSR (24.95 kilograms). As the Government notes in its Response, there are 2.2 pounds in a kilogram. The amount stated in the PSR merely represents 54.9 pounds divided by 2.2 pounds/kilogram to yield a figure in kilogram units. Hill cannot be said to have performed deficiently by declining to raise an objection for which there was no factual basis.
To the extent Hernandez can be understood to argue that her base offense level was improperly set at 34 and that she was incorrectly placed in Criminal History Category II due to Hill's ineffective assistance, the Court finds that her assertions are without merit. United States Sentencing Guideline § 2D1.1(a)(3) sets a defendant's base offense level at 34 for quantities involving 15 or more kilograms of cocaine but fewer than 50 kilograms. Here, the jury found Hernandez guilty of importing 5 kilograms or more of cocaine, based on evidence at trial that showed a total amount of 24.95 kilograms of cocaine. The Court finds that Hernandez' base offense level was properly calculated. It further finds that Hill did not perform deficiently in declining to mount a frivolous objection.
To the extent Hernandez alleges that the PSR incorrectly scored her prior criminal offenses, the Court similarly rejects her claim. The PSR awarded her no criminal history points for her 1978 conviction for theft under $80, her 1978 conviction for prostitution, for which she received a 14-day sentence, or her 1992 conviction for disorderly conduct, which resulted in a $50 fine. It did, however, award her one scoreable point due to a 2001 conviction for driving while intoxicated, for which she received a 180-day sentence suspended to 15 months' probation. The PSR additionally awarded her 2 criminal history points for having committed her instant offense while on probation from her driving-while-intoxicated offense, pursuant to U.S.S.G. § 4A1.1(d). Three criminal history points placed her squarely within Criminal History Category II. The Court finds that Hill did not perform deficiently by declining to raise a frivolous objection.
For the reasons discussed above, the Court will deny Hernandez' ineffective-assistance claim against Hill and dismiss this matter with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" 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 certificate of probable cause 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 certificate of probable cause 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).
See Miller-El v. Johnson, 537 U.S. 322, 335-6, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931, 949 (2003); 28 U.S.C.A. § 22 53(c)(2) (West Supp. 2003).
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 issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 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 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 v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338, 123 S. Ct. at 1040.
Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (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 Hernandez 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 Hernandez' claim for relief.
VI. CONCLUSION ORDER
For the reasons discussed above, the Court concludes that Petitioner Rita Hernandez is not entitled to relief regarding the claims she raises in her Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court further finds that Hernandez is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Rita Hernandez' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 37], filed on May 24, 2004, is DISMISSED WITH PREJUDICE.
2. Petitioner Rita Hernandez is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.