Opinion
Nos. EP-05-CA-0003-FM, EP-01-CR-1558-FM.
February 27, 2006
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Jorge Robaina's ("Robaina") "Sworn Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255" ("Motion to Vacate") [Docket No. 332], filed through counsel in the above-captioned cause on January 3, 2005. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") on March 3, 2005. Robaina did not file a Reply. After due consideration, the Court concludes that Robaina's claims should be denied and this action dismissed with prejudice. The Court will additionally decline to certify Robaina's issues for appeal.
I. PROCEDURAL HISTORY A. Criminal Cause No. EP-01-CR-1558-FM
On September 5, 2001, the Grand Jury sitting in El Paso, Texas returned a sealed one-count Indictment against Robaina and eleven co-defendants, charging them with conspiracy to import 1000 kilograms or more of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(vii). The case was randomly assigned to the docket of then-United States District Judge Edward C. Prado. Following his arrest in Miami, Florida, the Indictment was unsealed as to Robaina on September 28, 2001.
Through counsel, Robaina filed a waiver of personal appearance at arraignment and entered a plea of not guilty on October 26, 2001. After many continuances of the trial date, substitutions of counsel, and the commencement of jury selection, Robaina accepted a plea agreement negotiated by his Court-appointed counsel, Rebecca Estrada ("Estrada"), and the attorney for the United States. The signed plea agreement was filed on January 23, 2003.
Robaina was released on bond pending trial and at all times relevant to this proceeding resided in the State of Florida. He initially retained the services of attorney Manuel Gonzalez, Jr. ("Gonzalez"), a Florida attorney, who filed a "Motion for Admission for Pro Hac Vice" on October 24, 2001. On Robaina's behalf, Gonzalez filed a waiver of personal appearance at arraignment and entered a plea of not guilty.
Gonzales filed a "Motion to Withdraw as Counsel of Record" on January 3, 2002. Therein, Gonzalez asserted that it was impossible for him to represent Robaina effectively due to Robaina's failure to pay Gonzalez' agreed-to fee and failure to keep appointments or otherwise communicate with counsel. Judge Prado orally granted Gonzalez' Motion to Withdraw at docket call on January 18, 2002, granted Gonzalez' motion for a continuance until April 15, 2002, and referred the matter to a United States Magistrate Judge to determine Robaina's eligibility for Court-appointed counsel. That same day, the Magistrate Judge authorized El Paso attorney Angelina Lugo ("Lugo") to substitute for Gonzalez as Robaina's counsel of record.
At docket call on April 15, 2002, Lugo, in conjunction with counsel for three of Robaina's co-defendants, requested a three-month continuance to prepare for trial or negotiate a plea. Judge Prado granted the continuance and set a jury trial for July 22, 2002.
On July 3, 2002, Lugo filed a "Motion to Withdraw as Attorney of Record." Robaina's failure to communicate with her and to keep telephonic and in-person appointments, Lugo stated, made it impossible for her to prepare effectively for a trial or to negotiate a plea on her client's behalf. At a pretrial conference held on July 22, 2002, Judge Prado allowed Lugo to withdraw and appointed Assistant Federal Public Defender Robert Frank Castaneda ("Castaneda") to represent Robaina. Judge Prado moreover granted a continuance of the trial date until October 21, 2002.
Castaneda moved to withdraw as Robaina's counsel in a motion dated September 9, 2002. Castaneda explained that, in reviewing the voluminous discovery in the case, he discovered that he had represented one of Robaina's co-defendants early in the case and that his former client was scheduled to testify against Robaina at trial. The resulting conflict of interest, Castaneda asserted, made his continuing representation of Robaina impracticable. Judge Prado granted Castaneda's motion to withdraw in an order dated September 10, 2002.
Attorney Rebecca Estrada ("Estrada") was subsequently appointed to represent Robaina. She moved for a continuance of the trial date until December 16, 2002, which Judge Prado granted in an order dated October 9, 2002. On December 6, 2002, Estrada requested another continuance, which Judge Prado granted. Trial was reset for January 21, 2003.
Jury selection began on January 21, 2003. Thereafter, but before the trial itself began, Robaina accepted a plea agreement negotiated by Estrada and the attorney for the United States.
The agreement required Robaina to make several concessions. First, Robaina consented to plead guilty to Count One of the Indictment pending against him. Second, Robaina agreed to be sentenced in conformity with the Federal Sentencing Guidelines and Policy Statements. Third, Robaina pledged to waive his right to directly appeal or collaterally attack his sentence on any ground, with the following exceptions. Under the terms of the agreement, Robaina preserved the right to directly appeal any decision by the Court to depart upward from the otherwise applicable punishment range, pursuant to United States Sentencing Guidelines § 5K2.0. Robaina likewise retained the right to directly appeal a finding by the Court that he was ineligible for a downward departure from any statutorily mandated minimum sentence, pursuant to 18 U.S.C. § 3553(f). The terms of the agreement additionally allowed Robaina to challenge his sentence in a motion pursuant to 28 U.S.C. § 2255, provided that the claims in any such motion alleged that Robaina's sentence resulted from prosecutorial misconduct of a constitutional dimension or ineffective assistance of counsel. Regarding the waiver of his appellate rights, Robaina acknowledged that by signing the agreement, he understood and was
aware that any estimate of the probable sentencing range that he may receive from his counsel, the Government, or the Probation Office is not a promise, did not induce his guilty plea or this waiver [of the right to appeal the sentence imposed], and does not bind the Government, the Probation Office, or the Court. In other words, the Defendant understands that the Defendant cannot challenge the sentence imposed by the District Court, even if it differs substantially from any sentencing range estimated by his attorney, the attorney for the Government, or the Probation Officer. Realizing the uncertainty in estimating what sentence he will ultimately receive, the Defendant knowingly and voluntarily waives his rights to appeal the sentence or contest it in any post-conviction proceeding in exchange for the concessions made by the Government in this Agreement.
Plea Agreem't 2-3.
Lastly, the agreement required Robaina to admit that the factual basis offered by the Government to support his guilty plea was true. As part of acknowledging the accuracy of the factual basis, Robaina specifically admitted that he conspired to import at least 4,527 pounds of marijuana into the United States.
In exchange for Robaina's concessions, the Government agreed not to oppose the award of a three-level reduction in his punishment range for acceptance of responsibility. The Government additionally promised not to oppose a two-level downward adjustment for minor role, if the evidence supported such a finding.
Accompanied by Estrada, Robaina accordingly appeared before Judge Prado on January 23, 2003 and pleaded guilty to Count One of the Indictment. The record of that hearing, which was transcribed for purposes of appeal, shows that Judge Prado advised Robaina regarding the charges against him and the rights he would waive by pleading guilty. Judge Prado moreover specifically warned Robaina that he faced "a sentence of no less than ten years, and it could go as high as life imprisonment" if he pleaded guilty. Judge Prado further warned Robaina that his sentence would not be determined until after the Court had reviewed a Presentence Investigation Report ("Presentence Report"), which would be prepared and issued by the United States Probation Office after Robaina entered his guilty plea, if he still chose to do so upon receiving the Court's admonishments. In parting, Judge Prado told Robaina that
Plea Tr. 8.
before we decide what punishment should be given in this case, you have reached an agreement with the government in this case. And there are certain things that have to be done that could affect the type of sentence that I give in your case. So I suggest that you follow through with what you've agreed with the government, and it could make things a lot easier for you. So I'm going to set this case for another date, to get a full report from the probation office that tells me more about your background, and works out these guidelines that I've told you about, and tells me if you have followed through with your agreement with the government.
Plea Tr. 11-12.
Robaina affirmed that he understood the information conveyed to him by Judge Prado and that no one had threatened or coerced him into pleading guilty. Robaina also asserted that Estrada had reviewed the plea agreement with him and explained its terms. Robaina testified that, other than the pledges contained in the written plea agreement, no one had made any promises or secret arrangements with him in exchange for his guilty plea. Robaina additionally told the Court that he had been afforded adequate time to consult with Estrada about his case. Lastly, Robaina testified that the factual basis offered by the Government for his guilty plea was true. The Court accepted Robaina's plea, finding that it was knowing and voluntary, and deferred sentencing to allow for the preparation of the aforementioned Presentence Report.
Id. at 10-11.
The Presentence Report, which detailed the history of the offense and Robaina's role in it, was prepared on March 12, 2003 and provided to the parties. Therein, the Probation Office calculated Robaina's applicable range of imprisonment under the Sentencing Guidelines as 151 to 188 months. It additionally made the following recommendations regarding adjustments to Robaina's applicable punishment range. First, the Probation Office recommended that the Court deny Robaina an adjustment for acceptance of responsibility:
Although Robaina entered a guilty plea[,] he subsequently provided a statement to investigating agents wherein he denied participation in the instant offense. Further, Robaina entered an untimely guilty plea on January 23, 2003, subsequent to jury selection, placing the burden of preparing for trial on the government. Accordingly an adjustment for acceptance of responsibility is unwarranted.
Presentence Investigation Report ¶ 59 (emphasis added).
Second, because Robaina " ha[d] not provided the Government complete information he ha[d] regarding this case," the Probation Office concluded that he was therefore ineligible to escape the statutory mandatory minimum sentence under United States Sentencing Guidelines § 5C1.2. The Probation Office thus also recommended that the Court deny Robaina a two-level reduction pursuant to United States Sentencing Guidelines § 2D1.1(b)(6).
Id. at ¶ 61 (emphasis added).
Id.; see also United States Sentencing Commission, Guidelines Manual (hereinafter, "U.S.S.G."), § 2D1.1(b)(6) (Nov. 2002).
During the sentencing proceeding, Robaina told the Court that he had reviewed the Presentence Report. Estrada then informed the Court that Robaina disputed only the accuracy of two specific paragraphs of the Presentence Report, which concerned two previous traffic offenses. Estrada stated that Robaina either did not remember the incidents in question or believed that they were nothing more than traffic citations. The Court responded that the point was moot, as these minor offenses would not affect Robaina's ultimate sentence. Robaina stood silent when Estrada informed the Court that her client had no other disputes concerning the accuracy of the report.
Estrada then argued that the Presentence Report improperly recommended that the Court deny Robaina a departure for acceptance of responsibility because he had waited so long to plead guilty. Judge Prado granted her objection and awarded Robaina a three-level departure for acceptance of responsibility. Estrada stated that she would not argue her other objections because, even if the Court sustained them, they would have no impact on the mandatory minimum sentence of 120 months. Judge Prado then invited Robaina to speak on his own behalf, if he wished, before the Court imposed sentence. Robaina declined the invitation.
Judge Prado initially appeared ready to sentence Robaina to a sentence of less than 120 months. However, the attorney for the United States then reminded him that the Government had not moved for a downward departure pursuant to U.S.S.G. § 5K.1 or 18 U.S.C. 3553(e), and therefore, the Court had no basis to sentence Robaina below the statutorily-mandated minimum sentence. The Court concurred and accordingly sentenced Robaina to a 120-month term of imprisonment and a 5-year term of supervised release. It additionally ordered Robaina to pay a $100 special assessment. The Court entered Judgment on April 24, 2003.
Robaina timely appealed, arguing that his guilty plea was unknowing and involuntary because, although the plea agreement promised that he would receive a sentence under the United States Sentencing Guidelines, the Court sentenced him to the statutory mandatory minimum sentence of ten years. The Fifth Circuit Court of Appeals rejected Robaina's argument in an order dated December 10, 2003. Robaina did not seek certiorari review by the Supreme Court of the United States. B. Robaina's Motion to Vacate Pursuant to 28 U.S.C. § 2255
Robaina first alleges that Estrada rendered ineffective assistance at the plea stage of the proceedings ("Claim One"). Specifically, Robaina asserts that Estrada encouraged him to plead guilty without advising him that he would receive a minimum mandatory sentence of ten years if he did so. Robaina also contends that Estrada incorrectly advised him that he would receive a reduced sentence if he entered a guilty plea, advice which Robaina contends induced him to plead guilty rather than to proceed with trial.
Second, Robaina avers that Estrada rendered ineffective assistance at the sentencing stage of the proceedings ("Claim Two"). Robaina argues that Estrada's actions or omissions prevented him from qualifying for a safety valve adjustment pursuant to U.S.S.G. § 5C1.2, an acceptance of responsibility reduction pursuant to U.S.S.G. § 3E1.1, a substantial cooperation reduction pursuant to U.S.S.G. § 5K1.1, and an "interests of justice" reduction pursuant to U.S.S.G. § 5K2.0.
Robaina also contends that an evidentiary hearing is necessary to prove certain facts which he says are not apparent from the record. For the reasons set forth below, however, the Court finds that the record in this matter is sufficiently developed such that an evidentiary hearing is unnecessary.
II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. III. LEGAL STANDARD — INEFFECTIVE ASSISTANCE OF COUNSEL
Gaudet, 81 F.3d at 589.
Id.
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
An ineffective assistance of counsel claim has two components. First, the defendant must show that counsel performed deficiently. To establish deficient performance, a defendant must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687.
Wiggins, 539 U.S. at 521.
Id.
Id. (quoting Strickland, 466 U.S. at 688).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
Strickland, 466 U.S. at 687-91.
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (explaining the compelling policy considerations behind Strickland's contemporary, rather than retrospective, assessment of counsel's conduct); Burger v. Kemp, 483 U.S. 776, 789 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel's decisions based on the then-existing circumstances and counsel's perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel's strategic choices).
Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to such testimony by presenting its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (holding that clairvoyance is not a required attribute of effective representation).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.
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).
With these principles in mind, the Court turns to the merits of Robaina's claims for relief.
III. CLAIM ONE: INEFFECTIVE ASSISTANCE AT THE PLEA STAGE
As noted in Part I.B of this Memorandum Opinion, Robaina asserts that he received ineffective assistance at the plea stage of the proceedings because Estrada allegedly encouraged him to plead guilty without also telling him that he would be subject to a ten-year mandatory-minimum sentence and that he would therefore be ineligible for certain favorable sentencing adjustments that might otherwise apply. Robaina contends that he would not have pleaded guilty but for Estrada's alleged assurances that pleading guilty would result in a more lenient sentence than if he were to go to trial and be found guilty.
Contested issue of material fact in a § 2255 motion may not be decided on affidavits alone, unless the affidavits are supported by other evidence in the record. Here, the Court finds that the record supports Estrada's rendition of events, while Robaina's present allegations are inconsistent with his conduct and representations to the Court at the plea and sentencing stages of the proceedings. A. Estrada's Affidavit
United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981).
Estrada states that it was clear from speaking with Robaina and his former attorneys that he wished to stand trial. Estrada asserts that she acceded to Robaina's wish to stand trial and began to prepare for that event, including picking a jury on January 21, 2003. On the day before the commencement of the Government's case, Estrada avers, she met with Robaina to review the Government's likely strategy. Estrada states that Robaina appeared to be very worried and nervous about the outcome of the trial. When she met Robaina at the courthouse the next morning before trial, Estrada states, Robaina informed her that he wished to plead guilty, although the decision did not seem to have been an easy one for Robaina to make. Estrada says that she then approached the Assistant United States Attorney assigned to the case, who offered a plea agreement and expressed interest in speaking with Robaina because she believed that Robaina had potentially valuable information regarding a family member's involvement in the offense.
Estrada states that she explained the terms of the agreement to Robaina and told him how important the debriefing interview with Government agents was to bringing his sentence below the statutory mandatory minimum. Estrada says that she further explained to Robaina that he would have to reveal any and all information that he possessed regarding the case. Estrada remembers that Robaina indicated he understood.
According to Estrada, the debriefing interview went badly:
We attended the debrief that afternoon at the United States Attorney's Office. I cannot remember how the interview began, but I do know that Mr. Robaina denied any involvement in the crime. I know that the agent stepped out so that I could speak with [Mr. Robaina] and I told him that if the government felt that he was not being truthful, then the prosecutor would not recommend him for a safety valve reduction. The agent came back in and Mr. Robaina continued to deny knowledge or involvement. I do remember that one agent in particular was extremely frustrated and upset. Needless to say, the interview was terminated by the government and we left. I drove Mr. Robaina to the airport and explained that I did not believe he would get the safety valve reduction. I believe he knew that the interview had gone poorly.B. Discussion
Resp't's Resp. to Mot. to Vacate, docket no. 338 (Ex. H).
Estrada asserts that she did not coerce Robaina into pleading guilty and that she was fully prepared to go to trial, in keeping with Robaina's stated wished up to the day that the trial was scheduled to begin, and only assisted Robaina by negotiating a plea agreement after he informed her on the morning of the trial that he had changed his mind and desired to enter a plea. She moreover indicates that Robaina was aware that he could only receive a sentence below the mandatory minimum if he fully cooperated with the Government.
The Court finds that Estrada's recollection of the events in question is consistent with the record in this cause, including Robaina's representations to the Court. That is, Robaina told Judge Prado that no one had coerced him into pleading guilty or promised him anything than what was memorialized in the written plea agreement. Nothing in Robaina's pleadings or affidavit persuade the Court that it should give his present self-serving allegations greater weight than his representations to Judge Prado in open court. Because Robaina has not shown that Estrada performed deficiently by inducing him to enter a guilty plea, the Court finds that he has failed to carry his burden as to the first prong of Strickland.
Although Robaina's failure to meet the first prong of the applicable test for ineffective assistance of counsel claims makes it unnecessary for the Court to consider whether he has met the second prong, if the Court were to perform such an analysis, it would find that Robaina has also failed to establish prejudice under Strickland. Assuming only for the purposes of argument that Estrada did not inform her client that he faced a mandatory minimum sentence of ten years, it is evident from the record that Robaina was on notice regarding the sentence he faced. The plea agreement itself, which Robaina signed and informed the Court that he had read and understood, references a potential mandatory minimum sentence in the section discussing Robaina's waiver of appellate rights, stating that he preserved a right to appeal a finding that he was ineligible for any departures from a statutory mandatory minimum sentence. Moreover, before accepting the plea, Judge Prado specifically warned Robaina that he faced a minimum sentence of no less than ten years if he pleaded guilty. Judge Prado also admonished Robaina that he should follow through in his apparent intent to cooperate with the Government, if he wished to have any hope of obtaining a sentence below the mandatory minimum. Given these facts, the Court finds that Robaina has not demonstrated that he was prejudiced by any alleged failure on Estrada's part to tell him that he faced a mandatory minimum sentence of ten years or to tell him that he must cooperate with the Government.
For the reasons discussed above, the Court finds that, as to Claim One, Robaina has failed to establish of ineffective assistance under Strickland. Because Robaina has not demonstrated that he is entitled to relief regarding his assertion that he received ineffective assistance at the plea stage of his prosecution, Claim One is accordingly denied.
IV. CLAIM TWO: INEFFECTIVE ASSISTANCE AT THE SENTENCING STAGE
In connection with Claim Two of his Motion to Vacate, Robaina argues that Estrada's actions or omissions prevented him from qualifying for a safety valve adjustment pursuant to U.S.S.G. § 5C1.2, an acceptance of responsibility reduction pursuant to U.S.S.G. § 3E1.1, a substantial cooperation reduction pursuant to U.S.S.G. § 5K1.1, and an "interests of justice" reduction pursuant to U.S.S.G. § 5K2.0. For the reasons that follow, the Court finds that he has failed to show that he is entitled to relief under Strickland.
The Court has previously summarized the contents of Estrada's affidavit. Upon Robaina informing her on the very morning that trial was to begin that he wished to plead guilty, Estrada asserts, she immediately approached the attorney for the Government and arranged to have Robaina to participate in a debriefing interview on that same afternoon. Estrada recalls that she accompanied Robaina to the interview and stressed to him that he must be fully forthcoming with the agents in order for the Government to recommend that he receive any favorable sentencing adjustments pursuant to U.S.S.G. §§ 5C1.2 or 5K1.1. At the interview, despite Estrada's warnings, including a mid-meeting conference to re-emphasize the importance of cooperation, Robaina denied involvement in the offense and refused to cooperate with the agents.
Other than the conclusory assertion that "Ms. Estrada never tried to get me any sentencing reductions which could legally avoid the minimum mandatory, like cooperation with the government or safety valve," the Court finds that Robaina's affidavit is silent regarding the issue of whether he had a debriefing interview with the Government and what transpired during that session. Significantly, although afforded an ample period to reply to the Government's answer and supplement that reply with a rebuttal affidavit, Robaina has not availed himself of an opportunity to deny that the interview described by Estrada occurred or to challenge her account of the meeting's conduct or outcome. The Court therefore finds that Estrada's account of the debriefing interview is undisputed.
Pet'r's Mot. to Vacate, docket no. 332 (Aff. of Jorge Robaina) ¶ 3.E.
The Court additionally finds that the record itself supports Estrada's account. As set forth in Part I.A. of this Memorandum Opinion, both the transcript of the plea hearing and the Presentence Report corroborate Estrada's assertion that Robaina decided to plead guilty after the jury had already been selected for his trial. They further corroborate Estrada's assertion that she secured a debriefing interview for her client, and that Robaina attended the session but ultimately refused to cooperate with the interviewing agents, despite Estrada's warnings about the consequences of such recalcitrance. At sentencing, Robaina informed the Court that he had reviewed the Presentence Report and then stood silent while Estrada articulated his minor objections to it. Those objections notably did not include any challenge to the statements in the Presentence Report that a debriefing interview had occurred or that Robaina had refused to cooperate with agents. Although the Court gave Robaina an open-ended opportunity to speak after Estrada presented his objections, Robaina did not alert the Court to any other alleged inaccuracy in the Presentence Report. For the reasons discussed above, the Court therefore credits the account given by Estrada and rejects Robaina's assertions.
Presentence Investigation Report ¶ 59; Resp't's Resp. to Pet'r's Mot. to Vacate, docket no. 338, Ex. C (Plea Tr.), p. 6, ll. 4-10.
Presentence Investigation Report ¶¶ 59 61.
Resp't's Resp. to Pet'r's Mot. to Vacate, docket no. 338, Ex D (Sent. Tr.), pp. 2-3.
Given the Court's finding that Estrada's rendition of events is credible, virtually undisputed, and supported by the record and that Robaina's account of event is not, the Court concludes that Robaina has failed to carry his burden under Strickland. First, Robaina has failed to establish, as it is his burden to do, that Estrada performed deficiently. The Court finds that Estrada arranged for Robaina to debrief with Government agents, thus setting the groundwork for her client to receive favorable sentencing adjustments pursuant to § 5C1.2., 5K1.1, and § 5K2.0. However, Robaina, by failing to cooperate with agents and denying any involvement in the offense after just having pleaded guilty to it earlier the same day, effectively sabotaged any chance he may have had to obtain relief under the safety valve and substantial cooperation provisions of the Guidelines. Moreover, once Robaina's own conduct rendered him ineligible for a safety valve adjustment pursuant to § 5C1.2, Robaina also effectively precluded himself from an "interests of justice" adjustment pursuant to § 5K2.0.
See U.S.S.G. § 5C1.2(a) (instructing a district court to sentence a defendant according to the applicable statutory mandatory minimum sentence, unless the defendant meets the criteria set forth in 18 U.S.C. § 3553(f)(1)-(5)). Once Robaina became ineligible for a reduction pursuant to the Guidelines' safety valve provision, he likewise became ineligible for an "interests of justice" departure pursuant to U.S.S.G. § 5K2.0.
As to Robaina's contention that Estrada did nothing to obtain a favorable adjustment for acceptance of responsibility, the Court finds that the record flatly contradicts his allegation. The sentencing transcript clearly shows that Estrada objected to the Probation Office's recommendation that the Court deny her client an adjustment for acceptance of responsibility, due to the fact that he had waited until after jury selection to enter a plea and then additionally continued to deny participation in the offense, as evidenced by his statements to agents at the debriefing interview. The sentencing transcript also shows that Judge Prado sustained Estrada's objection and granted her client a three-level downward adjustment for acceptance, which reduced his imprisonment range from the otherwise applicable range of 151 to 188 months.
In light of the circumstances discussed above, the Court finds that Robaina has failed to establish that Estrada performed deficiently, as he must under the first prong of the Strickland analysis. Because he must show both deficient performance and prejudice, Robaina's failure to meet the first prong of Strickland is fatal to his ineffective assistance claim. Claim Two is accordingly denied.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review solely to those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998) (stating that the CoA requirement supersedes the previous requirement for a CPC to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA).
28 U.S.C. § 2253(c)(2) (West 2004); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (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) (discussing the limited scope of appellate review when a district court denies habeas relief); 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 Robaina 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 Robaina's claims for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Jorge Robaina'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 Jorge Robaina's "Sworn Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255" [Docket No. 332], filed through counsel in the above-captioned cause on January 3, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Jorge Robaina is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order dismissing, with prejudice, Petitioner Jorge Robaina's "Sworn Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255," filed through counsel in the above-captioned cause on January 3, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claims. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Accordingly,IT IS ORDERED that Petitioner Jorge Robaina "Sworn Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. 2255" is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Jorge Robaina is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.
The Clerk shall close this case.