Opinion
EP-04-CA-0411-PRM, EP-03-CR-1489-PRM.
November 8, 2005
MEMORANDUM ORDER AND OPINION
Before the Court is Petitioner Manuel Olivas-Zamorran ("Olivas") pro se "Motion to Vacate, Set Aside or Correct Sentence Title 28 U.S.C.A. § 2255 [ sic]" ("Motion to Vacate") [Docket No. 19], filed on November 1, 2004. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255" ("Response") [Docket No. 23] on January 6, 2005. Olivas replied on January 28, 2005, in a document entitled "Movant's Response to the Government's Motion to Dismiss Petitioner's Motion to Vacate, Set Aside or Correct Sentence Title 28 U.S.C.A. § 2255 [ sic]" ("Reply") [Docket No. 24]. After carefully considering the pleadings, the record of the proceedings in cause no. EP-03-CR-1489-PRM, the testimony elicited at an evidentiary hearing held on February 17, 2005, and the applicable law, the Court concludes that Olivas is not entitled to relief regarding his claims. The Court will accordingly dismiss Olivas' Motion to Vacate with prejudice. It will additionally deny him a Certificate of Appealability. I. FACTUAL AND PROCEDURAL HISTORY A. Criminal Cause No. EP-03-CR-1489-PRM
On August 6, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Olivas, charging him with Illegal Re-entry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Penalty Enhancement, based on Olivas' prior felony conviction in the Western District of Texas, El Paso Division, criminal cause no. EP-00-CR2-005-PRM, for Conspiracy to Possess with the Intent to Distribute a Quantity of Marijuana, in violation of 21 U.S.C. §§ 841 and 846.
Olivas chose to forego trial. Accompanied by counsel, Olivas accordingly appeared before a United States Magistrate Judge on September 17, 2003 and pleaded guilty to the Indictment. On the same day, the Magistrate Judge entered findings of fact and a recommendation that the Court accept Olivas' guilty plea. The Court adopted the Magistrate Judge's recommendation on October 30, 2003 and deferred sentencing to allow for the preparation of a Modified Presentence Report. The Court entered Judgment on November 3, 2003, sentencing Olivas to a 46-month term of imprisonment and a 3-year term of non-reporting supervised release. The Court additionally ordered Olivas to pay a $100 special assessment. Olivas did not appeal.
B. The Revocation of Olivas' Supervised Release in Criminal Cause No. EP-00-CR2-005-PRM
Because Olivas had been on supervised release from his earlier drug distribution offense when he was apprehended and accused of illegally re-entering the United States, the Government moved the Court to revoke Olivas' supervised release in cause no. EP-00-CR-2005-PRM. In a proceeding held immediately after his sentencing for Illegal Re-entry, the Court granted the Government's motion and revoked Olivas' supervised release. The Court imposed a 4-month term of imprisonment, to run consecutively to the 46-month term of confinement it imposed in cause no. EP-03-CR-1489-PRM. Olivas did not appeal the revocation.
C. Olivas' Motion to Vacate
The Court has read Olivas' pleadings liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Olivas to raise the following five claims for relief. First, Olivas asserts that his attorney-of-record, Assistant Federal Public Defender Reginaldo Trejo, Jr. ("Trejo") failed to file a timely Notice of Appeal ("Claim One"). In this regard, the Court also understands Olivas to fault the performance of Assistant Federal Public Defender Sandra Strelzin Lewis ("Lewis"), who by prearrangement appeared for Trejo at Olivas' sentencing. Second, Olivas argues that Trejo coerced him into pleading guilty by promising him a lower sentence ("Claim Two"). As part of his second claim, Olivas also contends that Trejo intimidated him; told him "to keep quiet and not to take the stand if requested by the Court" because the outcome of his trial would be the worse for his testimony; and promised to help Olivas with an appeal if Olivas would follow Trejo's advice. Third, Olivas alleges that Trejo or Lewis should have challenged the characterization of his prior conviction for Conspiracy to Possess with the Intent to Distribute a Quantity of Marijuana as an aggravated felony, when it was "merely a possession" offense ("Claim Three"). Fourth, Olivas complains that Trejo or Lewis should have, but did not, challenge a 16-level enhancement to Olivas' punishment range pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A) ("Claim Four"). Lastly, Olivas argues that the enhancement to his punishment range was unconstitutional under the holding of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) ("Claim Five"). D. The Court's Summary Dismissal of Claim Five
See Haines, 404 U.S. at 596 (stating that courts should hold allegations in a pro se complaint to a less stringent standard than those in a pleading drafted by a lawyer); see also United States v. Grammas, 371 F.3d 281, 285 n. 3 (5th Cir. 2004) (explaining that a pro se petitioner's allegations contained in a Motion to Vacate pursuant to 28 U.S.C. 2255 should be construed liberally).
Pet'r's Mot. to Vacate, Set Aside or Correct Sentence Title 28 U.S.C.A. § 2255 (hereinafter, "Pet'r's Mot. to Vacate") 5.
Id.; Mem. of Law in Support of Habeas Corpus Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.A. § 2255 (attached to Pet'r's Mot. to Vacate) (hereinafter, "Pet'r's Mem. of Law") 2.
Pet'r's Mem. of Law 2.
Pet'r's Mot. to Vacate 5; Pet'r's Mem. of Law 5.
Pet'r's Mot. to Vacate 5; Pet'r's Mem. of Law 5.
Pet'r's Mot. Vacate 5; Pet'r's Mem. of Law 6-8.
Rule 4(b) of the Rules Governing Section 2255 Cases ("Rule 4(b)") instructs a district court to conduct a preliminary examination of claims raised in a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255:
The judge who receives the motion [to vacate] must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or response within a fixed time, or to take other action the judge may order.
U.S.C .S. § 2255 Proc. R. 4(b) (West 2004).
As noted earlier in this Memorandum Opinion and Order, in Claim Five of his Motion to Vacate, Olivas alleges that his sentence violated the holding of Blakely. After conducting its preliminary examination of Olivas' Motion to Vacate pursuant to Rule 4(b), the Court entered an Order dated November 24, 2004. Therein, the Court advised Olivas that his fifth claim was barred by the Fifth Circuit Court of Appeals' decision in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), holding that the Supreme Court's ruling in Blakely did not operate to invalidate the federal sentencing guidelines. Concluding that Olivas was therefore clearly not entitled to relief regarding Claim Five, the Court accordingly summarily dismissed the claim with prejudice. In contrast, the Court ordered the Government to answer Olivas' remaining claims.
Since the date of the Court's Order dismissing Claim Five of Olivas' Motion to Vacate, Pineiro has been vacated and remanded in light of the Supreme Court's subsequent decision in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). Although the Fifth Circuit's holding in Pineiro no longer represents a viable basis for dismissing Claim Five of Olivas' Motion to Vacate, the Court finds that the claim is nevertheless still subject to summary dismissal under Rule 4(b).
Pineiro v. United States, ___ U.S. ___, 125 S.Ct. 1003 (2005) (vacating the Fifth Circuit's judgment in United States v. Pineiro, 377 F.3d 464 (2004), and remanding the case in light of the Supreme Court's subsequent decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, which held that the United States Sentencing Guidelines, to the extent they represented a mandatory rather than advisory punishment scheme, violated the Sixth Amendment's twin guarantees of trial by jury and conviction by a beyond-a-reasonable-doubt standard).
First, as it is authorized to do, the Court has conducted a retroactivity analysis to determine whether Booker's holding provides relief to petitioners whose judgments were already final upon Booker's release. In keeping with every circuit court of appeals to consider the matter, the Court concludes that the rule announced in Booker does not apply retroactively to Olivas' already final judgment. Moreover, even if Olivas' 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 Section I.A. of this Memorandum Opinion and Order, Olivas' punishment was enhanced due to his prior conviction for Conspiracy to Possess with the Intent to Distribute a Quantity of Marijuana. Under Booker, it is constitutionally permissible to use prior convictions to enhance a defendant's punishment. The Court therefore finds that Claim Five should be summarily dismissed, notwithstanding the Supreme Court's intervening decision in Booker. E. The Court's Order Setting an Evidentiary Hearing
See Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001) (stating that a district judge may determine whether a novel decision of the Supreme Court applies retroactively and thus whether a collateral attack is timely under 28 U.S.C. § 2244(b)(2)(A) or 28 U.S.C. § 2255 paragraph 6(3)); 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).").
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 corp us 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."). Here, because he did not appeal, Olivas' judgment became final on November 13, 2003, ten days after entry and more than a year before the Supreme Court released Booker. See FED.R.CRIM.P.4(b)(1)(A) (providing that, in a criminal case, a defendant's notice of appeal must be filed within ten days after the entry of judgment or the order being appealed, or with in ten days after the filing of the government's notice of appeal, which ever occurs later). Olivas is therefore ineligible for relief under Booker's holding.
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 (2 000), 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).
After reviewing Olivas' Motion to Vacate, the Government's Response, and Olivas' Reply, the Court concluded that Olivas had stated a facially valid claim of ineffective assistance under Roe v. Flores-Ortega, 528 U.S. 470 (2000), regarding his first claim for relief. The Court further found that the merits of Claim One could not be resolved on the record then before it. In an Order dated February 1, 2005, the Court advised the parties of its determination, appointed Olivas counsel, and set the matter for an evidentiary hearing pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings.
II. THE EVIDENTIARY HEARING
The Court conducted the evidentiary hearing on February 17, 2005. Olivas was present and accompanied by his Court-appointed counsel. The Government appeared by and through the Assistant United States Attorney.
The primary purpose of the hearing was to permit the parties to introduce evidence on the following matters: (1) whether Trejo consulted with Olivas about an appeal; (2) whether Olivas expressly asked Trejo or Lewis to file a Notice of Appeal or reasonably demonstrated to either of them that he was interested in appealing; and (3) whether there was a reasonable probability that, but for Trejo's or Lewis' deficient performance (if any), Olivas would have timely appealed. Because it would be necessary to reach the merits of Olivas' remaining ineffective-assistance claims should the Court determine that he had not been denied his right to appeal, the Court additionally allowed the parties to introduce evidence to support or rebut Olivas' other complaints regarding the performance of Trejo and Lewis. The following summarizes the witnesses' testimony.
A. Testimony of Petitioner Manuel Olivas-Zamorran
On direct examination, Olivas told the Court that Trejo met with him in person three times. The first occasion on which they met occurred very early in the case, when Trejo informed Olivas that the Court had appointed him to represent Olivas. According to Olivas, Trejo visited Olivas a second time before Olivas pleaded guilty. They then met a third time, after the plea but before sentencing, to review the Presentence Report. Olivas stated that Trejo never met with his family.
At their second meeting, Olivas testified, Trejo showed him the discovery material turned over by the Government. Olivas remembered that Trejo additionally showed him the Sentencing Guidelines table and explained how the table would likely apply to him. According to Olivas, Trejo predicted that Olivas would face a 46- to 57-month term of imprisonment, but told Olivas at a later, unspecified date that Olivas could probably get a sentence of no more than 24 months.
During this pre-plea meeting, Olivas stated, Trejo did not mention the possibility of an appeal. Olivas asserted that he raised the issue with Trejo, however, when he learned that he might receive anywhere from 46 to 57 months in prison, because he thought this punishment range was too severe for his offense. Olivas testified that he therefore told Trejo to do everything possible to get him less time. Olivas stated that he also asked Trejo during this pre-plea meeting about how to appeal, because if he received a lengthy sentence, he would want to appeal. Olivas told the Court that Trejo never responded to his question regarding an appeal. Olivas recalled that, as far as he was concerned, Trejo had instructions to do everything possible to reduce Olivas' sentence, including bringing an appeal if Olivas received a term of imprisonment between 46 and 57 months.
Olivas remembered that he last met with Trejo about one week before sentencing, when Trejo came to the jail to tell Olivas that another attorney would be with Olivas at sentencing. Despite his earlier testimony that Trejo had reviewed the Presentence Report with him at their pre-sentencing meeting, Olivas contradicted himself by stating that Trejo did not discuss the Presentence Report or any sentencing issues with him at all, but only discussed the fact that another attorney would represent Olivas at the sentencing hearing. Olivas recalled that they did not discuss the possibility of appeal during this meeting. Olivas told the Court that this third meeting represented the last time he spoke to Trejo, either in person or via telephone.
Olivas testified that when Lewis met with him on the day of sentencing, they did not discuss his case; Lewis merely introduced herself and told Olivas that she would be representing him at the hearing. Olivas asserted that, after sentencing, on the way from the lectern to his seat in the jury box, he told Lewis that he wanted to fill out appeal paperwork and asked her what he should do to appeal. According to Olivas, Lewis only told him that he should be happy that he had received the minimum sentence and said nothing else about the appeal process.
Olivas told the Court that he assumed a Notice of Appeal had been filed. He recalled that he telephoned the Federal Defender's Office a few times after sentencing to ask about his appeal, but either his calls were not accepted or he was told that Trejo was not in the office. Olivas thought that his wife had called once, too, but that she had been unable to get through to Trejo. Olivas said that he therefore wrote Trejo two letters. Olivas remembered that, in one letter, he asked Trejo to send a copy of the Indictment to him. Olivas said that, in the second letter, he wrote to Trejo to ask about his appeal.
On cross-examination, the Government elicited testimony that, immediately following his sentencing for Illegal Re-entry, Olivas' supervised release for his drug distribution offense in cause no. EP-00-CR-2005-PRM had been revoked. Olivas confirmed that the Court had sentenced him to a 4-month term of imprisonment, to run consecutively to the sentence imposed for Illegal Re-entry. Olivas acknowledged that he did not ask Trejo to appeal the 4-month term of imprisonment. Olivas did not elaborate, except to assert that he had been unaware that his supervised release was going to be revoked, because he and Trejo had not discussed the revocation before it happened.
The Government showed Olivas a letter [Gov't's Ex. 3], which Olivas identified as the second letter he had mailed to Trejo. Olivas admitted that the first letter he wrote ( i.e., the letter requesting certain documents related to his case), purportedly to Trejo, had in fact been addressed to the Court. The Government did not question Olivas regarding the contents of the letter, but rather chose to reserve such questioning for its cross-examination of Trejo. Olivas' counsel declined to conduct a re-direct examination of his client.
B. Testimony of Assistant Federal Defender Reginald Trejo, Jr.
Trejo testified on direct examination that he had been an Assistant Federal Public Defender for approximately five years at the time of the evidentiary hearing and a licensed attorney for ten years. As he testified is his practice with all his clients, Trejo stated that he used a form "Activity Sheet" [Gov't's Ex. 1] developed by the Federal Public Defender's Office to record his work on the case and his contact with Olivas.
Trejo recalled that he met with Olivas in person on five occasions — three times before the plea hearing, once on the day of the plea hearing, and once on the day before sentencing. The first instance was at the jail on July 16, 2003, the day on which Trejo was assigned Olivas' case. At that meeting, Trejo stated, he and Olivas discussed the facts of the case and Olivas' background, including his criminal history. Consistent with his routine practice when he meets with new clients for the first time, Trejo asserted, he gave Olivas a copy of the Sentencing Guidelines table and a preliminary evaluation of where he thought Olivas would fall on that chart, based on the information that Olivas had volunteered about his criminal history. Trejo recalled that he additionally mapped the different stages of the case on the back of the Sentencing Guidelines table for Olivas' reference. Among other things, Trejo testified, he noted on the chart that Olivas would have two options at the plea stage of the case. That is, Olivas could either go to trial and fight the charges against him, or he could plead guilty. Before departing the initial conference with Olivas, Trejo stated, he also gave Olivas his business card and a sheet of paper explaining how to call Trejo collect from the jail so that Olivas would not having any problems contacting him.
Trejo testified that he and Olivas met two more times before Olivas entered his plea on September 17, 2003. One of those meeting occurred on September 16, 2003, the day before the plea. At that meeting, Trejo recalled, Olivas asked about the possibility of an appeal. Trejo told Olivas that he had a right to appeal, but then focused on the matter at hand, explaining the procedures associated with the upcoming plea and reviewing discovery with Olivas again to ensure that Olivas wanted to plead guilty rather than to stand trial. After discussing possible defenses to the charges, such as derivative citizenship, Trejo told the Court, he returned to the subject of appeal. Trejo said that he explained that Olivas could appeal once sentencing was over, but not before. Trejo insisted that Olivas never told him that he wanted to appeal and that Olivas gave no indication whatsoever to make Trejo believe that Olivas intended to appeal his case, regardless of the sentence he received. Trejo stated that if he had received any sense from Olivas that his client had wanted to appeal, he would have filed a Notice of Appeal on Olivas' behalf, even if Trejo believed that Olivas wanted to raise a legally frivolous issue. Trejo testified that Olivas did not thereafter initiate any discussion regarding an appeal.
At the meeting just prior to sentencing, which Trejo stated that he recalled very well, Trejo asserted that he brought copies of the Modified Presentence Report and the Government's motion to revoke Olivas' supervised release and reviewed both documents with Olivas. Trejo said that he also reviewed the guidelines again with his client and showed Olivas the sentencing range that he would face based on the offense and the recommendations contained in the Modified Presentence Report. Trejo testified that he moreover explained to Olivas that he would ask for a sentence at the bottom of the guideline range in the Illegal Re-entry case and request that the Court run the sentence concurrently with the sentence it imposed for the revocation of Olivas' supervised release. Trejo told the Court that he then asked Olivas about his desire to appeal the sentence if Olivas received a sentence at the bottom of the applicable guideline range. Trejo said he advised Olivas that, if the Court imposed a sentence at the bottom of the guideline range, then he did not see any reason for Olivas to appeal. According to Trejo, Olivas stated that he did not want to appeal if he received a sentence at the bottom end of the guidelines, and Trejo wrote this information down in his notes. Trejo testified that this was the last instance in which he raised the subject of appeal with Olivas and that neither Olivas nor Olivas' family members subsequently contacted him about an appeal.
Trejo said that he also informed Olivas in this meeting that he would not be able to attend the sentencing hearing due to a scheduling conflict and that he had asked Lewis to appear for him on Olivas' behalf. According to Trejo, when he asked whether Olivas objected to Lewis appearing with him at sentencing, Olivas stated that he had no problem with it. Trejo recalled that because Olivas had been working as a trustee at the jail while awaiting sentencing, he had earlier asked Olivas to obtain a letter from the jail confirming that fact. At their meeting before sentencing, Trejo said that he asked Olivas to give a copy of that letter to Lewis when Olivas met with her before sentencing the next day, so that she could present the letter to the judge. Trejo recalled that Olivas said that he would give Lewis the letter.
Trejo testified that he gave Lewis the case file with written instructions and additionally verbally briefed her about the sentencing issues in Olivas' case and how Trejo wished her to proceed. Trejo told the Court that, in his professional judgment, there was nothing to contest at sentencing. After reviewing the Modified Presentence Report, Trejo concluded that the 16-level enhancement to Olivas' base offense level in the Illegal-Re-entry case was clearly lawful based on Olivas' prior federal drug distribution conviction and that there was no basis for objecting to the criminal history scoring. Trejo acknowledged that Lewis raised a verbal Apprendi objection to a sentence over 24 months, but stated that it was the common practice to file this objection, which had proven futile, either in writing before sentencing or to raise it orally at sentencing, merely to preserve the issue for appeal.
Trejo testified that he had no contact with Olivas after sentencing until he received a letter from Olivas in July 2004 [Gov't's Ex. 1]. Trejo stated that this was the only letter he received from Olivas, and therein, Olivas asked only for a copy of the Indictment, Presentence Report, Judgment, and certain other documents in the case, which Trejo mailed to him on July 23, 2004. According to Trejo, Olivas' letter mentioned nothing about an appeal.
On cross-examination, Trejo related the policy and procedures of the Federal Defender's Office regarding collect calls. Trejo stated that the office accepts all inmate collects calls when the inmate's attorney of record is physically present in the office. When the attorney is not in the office, a notation is made and the client is advised to leave a voice mail message if the matter is important. Trejo stated that he was the attorney of record for Olivas, but did not receive any collect or non-collect phone calls from Olivas within ten days of his sentencing on October 29, 2003. According to Trejo, no member of Olivas' family contacted him regarding the filing of a Notice of Appeal.
Olivas' counsel chose not to conduct a re-direct examination of Trejo. The Court accordingly excused the witness.
C. Testimony of Assistant Federal Defender Sandra Strelzin Lewis
Lewis testified on direct examination that she had been an Assistant Federal Public Defender for almost four years at the time of the evidentiary hearing. Lewis confirmed that she handled the sentencing in Olivas' case due to a scheduling conflict encountered by Trejo. Lewis stated that Trejo prepared her for Olivas' sentencing the day before the scheduled hearing. Lewis recalled that she and Trejo discussed the case and that Trejo gave her copies of medical records concerning Olivas' ill child. They reviewed the Modified Presentence Report together and Trejo advised her that Olivas knew and did not object to the fact that Lewis would appear at sentencing with him, rather than Trejo. Trejo also advised Lewis that he expected no issues to arise at sentencing and that the client did not want to appeal. Lewis recalled that they also discussed Olivas' revocation and reviewed the guidelines calculations concerning that case. Trejo additionally instructed Lewis to ask the Court to sentence Olivas at the bottom of the guidelines range and to run the Illegal Re-entry and revocation sentences concurrently.
Lewis stated that she met with Olivas for the first time on the day of sentencing and spoke with him in the jury box for about four or five minutes before his hearing. Lewis remembered that Olivas gave here certain documents from the jail which showed that he had been working while incarcerated. Lewis said that she asked Olivas if he had seen the Modified Presentence Report and the revocation paperwork and whether he understood what was going on and had any problems. Olivas indicated that he did understand, was fine, and was ready to proceed to sentencing. Lewis recalled that Olivas had enough time during their conversation to tell Lewis that his family members were present and to point them out to her.
Lewis testified that she did not raise the issue of appeal with Olivas because she understood that Trejo had already discussed Olivas' wishes in that regard on the previous day. According to Lewis, Olivas himself said nothing to her about wanting to appeal.
Lewis remembered that there were no objections filed in the case, except a routine oral Apprendi objection that she made at sentencing. Lewis testified that, at sentencing, she brought the fact of Olivas' ill child to the Court's attention and presented the child's medical records to the Court. Lewis stated that the Court reviewed the records at the bench and then returned them to her.
Lewis recalled that Olivas received a sentence at the bottom of the guidelines range for both the Illegal Re-entry offense and the revocation of his supervised release. Immediately after the proceeding, Lewis said, she spoke with Olivas as he was being led back to his seat in the jury box. Lewis remembered that she asked Olivas if he were okay and understood what had happened. According to Lewis, Olivas responded that he was fine. He said nothing about wanting to appeal and did not ask any questions or raise any other issues. He did not ask her to come to the marshal's office afterwards so that he could talk to her, nor did he ask her to send Trejo to see him, even though Lewis testified that she told Olivas that she could send Trejo to him if he had anything that he wanted to discuss. Lewis stated that Olivas also made no attempt to get her attention while he and she were both still in the courtroom.
Lewis told the Court that she spoke with Olivas' family afterward, but could not recall the duration of the conversation. Lewis said that it was long enough for her to explain to the family members what had happened at sentencing and where Olivas would likely be transferred while awaiting a facility designation from the Bureau of Prisons. She also returned the medical records for Olivas' child to them. According to Lewis, Olivas' family did not raise the issue of appeal. Lewis testified that she had no further contact of any kind with Olivas or his family.
The Government's cross-examination was limited to Lewis' entry on the Activity Sheet [Gov't's Ex. 1] corresponding with October 30, 2005, the date of Olivas' sentencing. Lewis' entry did not mention anything about Olivas wishing to appeal. Lewis testified that, if Olivas had asked her to appeal, she would have noted it in her entry, would have advised Trejo about the client's wishes when she returned the case file, and a Notice of Appeal would have been filed. Lewis reiterated that it was her understanding at sentencing that Olivas did not wish to appeal.
Olivas' counsel stated that he had no further questions of Lewis. The Court accordingly excused the witness.
III. THE COURT'S FACTUAL FINDINGS
Based on this Court's first-hand examination of the witnesses' demeanor at the evidentiary hearing, the evidence introduced at that same evidentiary hearing, the record of the plea and sentencing hearings, and its own independent recollection of those proceedings, the Court credits the testimony of Trejo and Lewis over that of Olivas. The Court accordingly enters the following factual findings:
1. Assistant United States Attorney Reginaldo Trejo, Jr. served as Olivas' appointed counsel of record in criminal cause no. EP-03-CR-1489-PRM. Therein, Olivas was charged with one count of Illegal Re-entry, in violation of 8 U.S.C. § 1326.
2. Olivas had been previously convicted in United States District Court for the Western District of Texas, El Paso Division, criminal cause no. EP-00-CR-2005-PRM, of Possession of Marijuana with the Intent to Distribute, in violation of 21 U.S.C. §§ 841 and 846. On June 29, 2001, United States District Judge Harry L. Hudspeth sentenced Olivas to a 30-month term of imprisonment and a 3-year tem of non-reporting supervised release.
3. Based on Olivas' previous conviction in criminal cause no. EP-00-CR-2005-PRM, the Government filed a Notice of Penalty Enhancement pursuant to 8 U.S.C. § 1326(b)(2), seeking a 16-level enhancement in Olivas' sentence should he be convicted of Illegal Re-entry.
4. Because the term of Olivas' supervised release in criminal cause no. EP-00-CR2-005-PRM had not expired when Olivas was arrested and charged with Illegal Re-entry, the Government filed a motion for revocation of Olivas' supervised release on October 7, 2003. Trejo represented Olivas in the revocation proceeding.
5. Trejo met with Olivas on July 16, 2003.
6. At the July 16, 2003 conference, Trejo discussed the facts of Olivas' case, as well as Olivas' personal and criminal history. Trejo gave Olivas a copy of the Sentencing Guidelines table and made a preliminary assessment of Olivas' sentencing exposure if he were found guilty of Illegal Re-entry, based on Olivas' self-reported criminal history.
7. On the reverse side of the Sentencing Guidelines table, Trejo charted the key procedural events that would occur in Olivas' case. Trejo noted that Olivas would have two choices at the plea hearing. That is, Trejo explained that Olivas could fight the charges against him by entering a plea of not guilty, or that he could forego a trial and plead guilty.
8. Before leaving the July 16, 2003 meeting, Trejo gave Olivas his business card and a document explaining how to call Trejo collect from the jail, so that Olivas would not have any difficulty communicating with Trejo.
9. Trejo and Olivas met again on September 16, 2003, the day before Olivas was scheduled to enter a plea in criminal cause no. EP-03-CR-1489-PRM. Trejo brought discovery material disclosed by the Government and reviewed it with Olivas.
10. Trejo informed Olivas that he would likely face a punishment range of 46 to 57 months if he pleaded guilty to the charges. Trejo additionally discussed possible defenses to the Illegal Re-entry charges, such as derivative citizenship, and the procedure for the upcoming plea hearing to ensure that his client wished to plead guilty. Olivas indicated to Trejo that he wanted to enter a guilty plea.
11. Trejo did not promise or otherwise lead Olivas to believe that his sentence would be as little as 24 months.
12. During the September 16, 2003 meeting, Olivas asked Trejo a general question about the appeal process. Trejo informed Olivas that he had a right to appeal, which Olivas could exercise after sentencing if he wished.
13. At their September 16, 2003, Olivas did not tell Trejo that he wanted to appeal. Olivas likewise gave no other indication that would have reasonably suggested to Trejo that Olivas wished to appeal if the Court imposed a sentence above a certain range.
14. The September 16, 2003 meeting represents the only time that Olivas, on his own initiative, raised the subject of appeal with Trejo.
15. Trejo and Olivas met again on October 29, 2003, the day before Olivas was scheduled to appear before the Court for sentencing in criminal cause no. EP-03-CR-1489-PRM and for a hearing on the Government's motion for the revocation of Olivas' supervised release in criminal cause no. EP-00-CR-2005-PRM.
16. Trejo informed Olivas that another attorney from the Federal Public Defender's Office, specifically Assistant Federal Public Defender Sandra Strelzin Lewis, would appear with Olivas at the upcoming sentencing and revocation hearings. Olivas indicated that he did not object to Lewis standing in for Trejo at the sentencing and revocation hearings.
17. Trejo brought copies of the Modified Presentence Report in criminal cause no. EP-03-CR-1489-PRM and the Government's motion to revoke Olivas' supervised release in cause no. EP-00-CR-2005-PRM. Trejo reviewed the Modified Presentence Report and motion to revoke with Olivas. Trejo also discussed the applicable punishment range Olivas would face for both the Illegal Re-entry offense and the revocation of his supervised release.
18. Trejo informed Olivas that, pursuant to Trejo's instructions, Lewis would ask the Court to sentence Olivas at the bottom of the guidelines range in both of his cases and would moreover ask the Court to run the sentences concurrently rather than consecutively.
19. At the meeting on October 29, 2003, after discussing Olivas' sentencing exposure, Trejo asked Olivas whether he would want to appeal the sentence in criminal cause no. EP-03-CR-1489-PRM if he received a sentence at the low end of the applicable punishment range ( i.e., a 46- to 57-month term of imprisonment). Trejo advised Olivas that, in his professional judgment, he saw no reason to appeal if Olivas received a sentence at the bottom of the range.
20. At the October 29, 2003 meeting, Olivas told Trejo that he did not want to appeal if he received a sentence at the low end of the applicable guidelines range. Trejo recorded Olivas' wishes in his notes.
21. Neither Olivas himself nor any member of Olivas' family subsequently contacted Trejo regarding the filing of an appeal.
22. Trejo briefed Lewis in writing about Olivas' Illegal Re-entry and revocation cases and additionally met with her to discuss how Trejo wished Lewis to proceed at the sentencing and revocation hearings. Trejo also informed Lewis that Olivas had stated that he did not wish to appeal his conviction for Illegal Re-entry.
23. Trejo concluded in his professional judgment that there was no non-frivolous basis for objecting to the recommendations contained in Modified Presentence Report. In Trejo's opinion, the 16-level enhancement to Olivas' base offense level was lawful and the Modified Presentence Report correctly scored Olivas' criminal history. Based on Trejo's prior experience before the Court, he concluded that an Apprendi objection would be unsuccessful.
24. With Olivas' consent, Lewis stood in for Trejo at Olivas' sentencing and revocation hearing on October 30, 2003.
25. Lewis and Olivas conversed for approximately four to five minutes before Olivas' hearing. Olivas indicated that he had seen the Modified Presentence Report and documents associated with the Government's motion to revoke his supervised release in cause no. EP-00-CR-2005-PRM and understood what was going to happen when he came before the Court.
26. At sentencing, Olivas received a 46-month term of imprisonment for his Illegal Re-entry offense, the least severe sentence possible under the applicable guidelines range.
27. The applicable guideline for the revocation of Olivas' supervised release was a term of imprisonment between 4 and 10 months. Upon revoking Olivas' supervised release in criminal cause no. EP-00-CR-2005-PRM, the Court sentenced him to a 4-month term of imprisonment, the lowest possible term of imprisonment available to it.
28. Olivas said nothing to Lewis either before, during, or after his sentencing about wanting to appeal his sentence, nor did he ask Lewis to send for Trejo. Olivas additionally did nothing else that would have reasonably suggested to Lewis that he wished to appeal.
29. When Lewis spoke with Olivas' family members immediately after sentencing, they said nothing about wanting to file a Notice of Appeal.IV. 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).
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 (setting forth the cause-and-prejudice standard when a petitioner seeks to raise a claim for the first time in a collateral appeal).
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 discussed above in mind, the Court turns to the merits of Olivas' four remaining claims for relief. IV. CLAIM ONE
Olivas contends that Trejo and Lewis rendered ineffective assistance because they failed to file a Notice of Appeal on his behalf. The Court first considers the applicable legal standards.
A. Legal Standard — Ineffective Assistance of Counsel, in General
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 hind sight 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 in formation); 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. Legal Standard — Ineffective Assistance for Failing to File a Notice of Appeal
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 Strickland test for ineffective assistance of counsel applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court explained:
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
Id. at 480.
It emphasized that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Moreover, it instructed, to demonstrate prejudice, a defendant is not required to identify specific issues or show the likelihood of success on the merits if counsel's deficient performance deprived him of the appellate proceeding altogether.
Although showing nonfrivolous grounds for appeal may give weight to the contention that the defendant would have appealed, a defendant's inability to specify the points he would raise were his right to appeal reinstated will not foreclose the possibility that he can satisfy the prejudice requirement where there are other substantial reasons to believe that he would have appealed. We . . . conclude . . . that it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal. Rather, we require the defendant to demonstrate that, but for counsel's deficient conduct, he would have appealed.
Id. at 477.
Id. at 482-3.
See id. at 486 (internal citations omitted) (emphasis in original).
With these principles in mind, the Court considers Olivas' claim that Trejo or Lewis (or both attorneys) rendered ineffective assistance by failing to file a Notice of Appeal on his behalf.
C. Discussion
Applying the relevant law to its factual findings, the Court concludes that Olivas has failed to carry his burden under the tests articulated in Strickland and Flores-Ortega. As noted in Section III of this Memorandum Opinion and Order, the Court credits Trejo's testimony that he consulted with Olivas about his wishes regarding an appeal and that Olivas told Trejo that he did not want to appeal if he received a sentence at the low end of the guidelines range. The Court, in fact, imposed the lowest sentence possible under the applicable guidelines range, a 46-month term of imprisonment. Olivas said nothing to Lewis after sentencing and took no other action to contradict his previously stated desire not to appeal. Nor did Olivas attempt to contact Trejo within the period for filing a timely Notice of Appeal to inform Trejo that he had changed his mind about appealing. For these reasons, the Court concludes that Olivas has failed to demonstrate, as it is his burden to do, either deficient performance on Trejo's or Lewis' part or prejudice. Accordingly, the Court concludes that Claim One of Olivas' Motion to Vacate should be dismissed with prejudice.
IV. CLAIM TWO
Olivas claims in his Motion to Vacate that he pleaded guilty because Trejo promised him a sentence of 24 months. Olivas's testimony under oath at the evidentiary hearing was far less sanguine. In that proceeding, Olivas merely asserted that Trejo told him there was a probability that his sentence could be as little as 24 months. In any event, the Court does not find Olivas' testimony at the evidentiary hearing to be credible, especially in light of his earlier sworn statements to the United States Magistrate Judge at the plea hearing. In that hearing, Olivas affirmed that no promises or threats had been made to induce his plea. Nothing in Olivas' testimony at the evidentiary hearing persuades the Court that it should give the latter self-serving statements greater weight than his testimony before the Magistrate Judge. Claim Two is accordingly dismissed with prejudice. V. CLAIM THREE
Gov't's Resp. to Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to Sec. 2255, Ex. D (tr. of pleahr'g held Sept. 17, 2003) 9, ll. 3-6.
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 the district court's determination, made during the defendant's plea colloquy, that the defendant had not been pressured to enter a guilty plea, rather than the defendant's later self-serving statements to the contrary); United States v. Abreo, 30 F.3d 29, 31 (5th Cir. 1994) (explaining that courts should place greater weight on a defendant's sworn statements during his plea colloquy than on his later, self-serving allegations).
Olivas contends that his earlier conviction in cause no. EP-00-CR-2005-PRM for Conspiracy to Possess with the Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 841 and 846, does not constitute an "aggravated felony" and therefore should not have been used to enhance his sentence. He asserts that Trejo and Lewis were thus ineffective for failing to challenge the Modified Presentence Report on this basis.
Olivas' argument is without merit. The Application Note for United States Sentencing Guidelines § 2L1.2, which governs sentencing for the offense of unlawfully entering or remaining in the United States, defines an "aggravated felony" as having the meaning given to that term in 8 U.S.C. § 1101(a)(43). Section 1103(a)(43) defines an "aggravated felony" to include, among other offenses, "illicit trafficking in controlled substances," as controlled substances are defined in 21 U.S.C. § 802.
See U.S.S.G. § 2L1.2, App. Note 3(A) (stating that, for purposes of U.S.S.G. § 2L1.2 (b)(1)(C), which instructs a district court to increase the defendant's base level offense by eight levels for an aggravated felony, "aggravated felony" has the meaning given to that term in 8 U.S.C. § 110 1(a)(43), without regard to the date of conviction for the offense).
8 U.S.C . § 1101 (a)(43)(B).
Here, Marijuana is a Schedule I controlled substance. It is further axiomatic that conspiring to possess a controlled substance with the intent to distribute it constitutes "illicit trafficking." The Court accordingly finds that neither Lewis nor Trejo can be considered ineffective for having declined to make a frivolous objection. Claim Three is therefore dismissed with prejudice.
21 U.S .C. § 812 (b)(1).
See 21 U.S.C. § 841 (criminalizing and setting forth the punishment for the possession of controlled sub stances with the intent to distribute them).
VI. CLAIM FOUR
Olivas asserts that Trejo and Lewis were ineffective because they did not challenge the 16-level increase in his base offense level, pursuant to the provisions of United States Sentencing Guidelines § 2L1.2(b)(1)(A). After review, the Court finds that Olivas' claim is without merit.
Section 2L1.2(b)(1)(A) instructs a district court to increase a defendant's base offense level by 16 levels if the defendant was previously deported or unlawfully remained in the United States after a conviction for a felony that is: (1) a drug trafficking offense for which the sentence imposed exceeded 13 months; (2) a crime of violence; (3) a firearms offense; (4) a child pornography offense, (5) a national security or terrorism offense; (6) a human trafficking offense; or (7) an alien smuggling offense.
U.S.S.G . § 2L1.2 (b)(1)(A).
As previously discussed, a conviction pursuant to 21 U.S.C. § 841 constitutes a drug trafficking offense. Moreover, in cause no. EP-00-CR-2005-PRM, the district court imposed a 30-month term of imprisonment. Olivas' prior conviction thus clearly qualified for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The Court therefore finds that neither Trejo nor Lewis performed deficiently by declining to raise a frivolous objection. Claim Four is accordingly dismissed with prejudice. VII. 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 Olivas 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 Olivas' claims for relief.
VIII. CONCLUSION ORDER
For the reasons discussed above, the Court concludes that Petitioner Manuel Olivas-Zamorran is not entitled to relief regarding the claims he raises in his Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court further finds that Olivas is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Manuel Olivas-Zamorran's pro se "Motion to Vacate, Set Aside or Correct Sentence Title 28 U.S.C.A. § 2255" [Docket No. 19], filed on November 1, 2004, is hereby DISMISSED WITH PREJUDICE.
2. Petitioner Manuel Olivas-Zamorran is DENIED a CERTIFICATE OF APPEALABILITY.
3. All other pending motions in this cause, if any, are DENIED AS MOOT.
4. The District Clerk shall CLOSE this case.
SO ORDERED.
FINAL JUDGMENT
On this day, after holding an evidentiary hearing, the Court entered an Order dismissing, with prejudice, Petitioner Manuel Olivas-Zamorran's pro se "Motion to Vacate, Set Aside or Correct Sentence Title 28 U.S.C.A. § 2255" [Docket No. 19], filed on November 1, 2004. The Court additionally denied Petitioner a Certificate of Appealability. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Manuel Olivas-Zamorran's "Motion to Vacate, Set Aside or Correct Sentence Title 28 U.S.C.A. § 2255" is DENIED and THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.