Opinion
3:19-cv-00629-B (BT) 3:08-cr-00268-B-4
12-02-2021
ISRAEL VASQUEZ, Movant, v. UNITED STATES of AMERICA, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
Movant Israel Vasquez, a federal prisoner, filed a pro se motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The District Court referred the resulting civil action to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the Court should deny Vasquez's § 2255 motion.
I.
Vasquez pleaded guilty to an indictment charging him with (1) conspiracy to possess with intent to distribute and distribution of more than 500 grams of methamphetamine, a schedule II controlled substance, in violation of 21 U.S.C. § 846 (21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii)) (count one); and (2) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (18 U.S.C. § 1956(a)(1)(A)(i) and (a)(1)(B)(i)) (count two).
In his Factual Resume, Vasquez stipulated to the following:
Between May 1, 2007, and August 1, 2008, Israel Vasquez conspired with Angel Hernandez, Ana Cornelio, Irving Cornelio Reynoso, Efrain Vasquez, and others to possess with intent to distribute more than 500 grams of methamphetamine. Vasquez, along with Angel Hernandez and others, acquired large quantities of methamphetamine that he would distribute to others. Vasquez used the proceeds from the sale of the narcotics to conceal his ownership of properties that were purchased with drug proceeds.
On September 27, 2007, a confidential informant working with the DEA purchased methamphetamine from Israel Vasquez. Laboratory analysis of the seized substance showed that it weighed 442.5 grams and contained a detectable amount of methamphetamine.
On January 9, 2008, Israel Vasquez was stopped by police officers in possession of cocaine and methamphetamine. The methamphetamine seized included methamphetamine obtained by Vasquez from Angel Hernandez and Ana Cornelio. Reynoso acted on behalf of Angel Hernandez and Ana Cornelio in distributing drugs. Laboratory analysis confirmed that one of the substances contained a detectable amount of cocaine and weighed 2, 037 grams. The second substance contained a detectable amount of methamphetamine and weighed 4, 509 grams.
Vasquez further admits that he used the proceeds from the sale of controlled substances, including methamphetamine, to purchase property: 804 Shady Lane, Dallas, Texas.
Based on this participation in the organization, Israel Vasquez admits that during the course of the conspiracy, he and the organization members possessed with intent to distribute at least 15 kilograms of methamphetamine and/or 1.5 kilograms of “ice” methamphetamine.(CR ECF No. 223 at 3-4.) The Factual Resume has several handwritten edits that were initialed by both Vasquez and his trial attorney, Michael J. Todd. (CR ECF Nos. 223, 243.)
For purposes of these Findings, Conclusions, and Recommendation, “CR ECF” refers to the criminal action, case number 3:08-cr-268-B (4), and “CV ECF” refers to the civil action, case number 3:19-cv-629-B-BT.
Prior to sentencing, Vasquez absconded from pretrial supervision, fled to Mexico, and continued to engage in drug-trafficking. (CR ECF No. 519 at 131-36) (Vasquez's wife testified at his motion/sentencing hearing that he continued to engage in drug-trafficking); (CR ECF No. 468-1 at 2) (Investigation revealed that Vasquez “returned to Mexico and continued to be involved in methamphetamine trafficking from Mexico to the United States.”)). On April 26, 2016, more than five years after he became a fugitive, Vasquez was arrested in Seattle, Washington and transferred back to the Northern District of Texas for sentencing. (CR ECF No. 468-1 at 1.)
Approximately two weeks prior to sentencing, Vasquez moved to withdraw his guilty plea. He argued: (1) he had entered a guilty plea “because of off-the-record promises and threats, ” (2) the stipulated facts in the Factual Resume contained “untrue and misleading facts, ” (3) his attorney did not go over the Factual Resume with him prior to the entry of his guilty plea; and (4) his attorney failed to advise him of crucial consequences of his plea deal. (CR ECF No. 503 at 1, 7.)
On February 8, 2017, the District Court held a hearing on Vasquez's motion and his sentencing. The District Court found that the Carr factors weighed heavily against granting Vasquez's motion to withdraw his guilty plea and denied his motion. (CR ECF No. 519 at 51-53.) The District Court then sentenced Vasquez to a term of life imprisonment on count one and 240 months' imprisonment on count two. The two terms were ordered to run concurrently. Vasquez appealed to the Fifth Circuit Court of Appeals, and on February 26, 2018, the Fifth Circuit affirmed this Court's judgment.
See United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
The Court received Vasquez's motion seeking additional time to file a § 2255 motion on March 12, 2019. (CV ECF No. 2) The Court advised Vasquez that it was without the authority to extend the statutory filing deadline under § 2255, and it made no determination regarding the timeliness of his claims. (CV ECF No. 4.) Vasquez then filed this § 2255 motion (CV ECF No. 5), which was received in the Clerk's Office on May 2, 2019. In his motion, Vasquez argues:
(1) his guilty plea was not supported by a sufficient factual basis because although he and the Government's attorney signed the Factual Resume, his attorney did not sign the Factual Resume but later signed the Amended Factual Resume at Vasquez's rearraignment hearing;
(2) his sentence was improper because a. the relevant conduct supporting an upward variance was beyond the scope of the charged conspiracy;
b. the penalty for failure to appear, under 18 U.S.C. § 1346, should have been applied to his sentence; and
(3) he received ineffective assistance of counsel when:
a. his attorney did not properly explain the factual basis for his plea or the Presentence Report (PSR);
b. his attorney did not sign the Amended Factual Resume until the day of the rearraignment hearing.
In its response, the Government argues that Vasquez's § 2255 motion should be denied because it raises claims that are waived, procedurally barred, meritless, or some combination thereof. Vasquez did not file a reply, but the § 2255 motion is now ripe for determination.
II.
A. Vasquez's challenge to his guilty-plea conviction fails under the law-of-the-case doctrine and is procedurally barred.
Vasquez argues that his conviction is invalid because his guilty plea was not supported by a sufficient factual basis. Mot. 7 (CV ECF No. 5). Specifically, Vasquez contends that his attorney, Todd, did not sign the Factual Resume at the same time he and the Government's attorney signed it. Id. Rather, Vasquez contends that Todd signed an Amended Factual Resume later, he was the only party to sign the Amended Factual Resume, and this rendered Vasquez's factual basis invalid. Id.
1. Law-of-the-case doctrine
“The law of the case doctrine posits that ordinarily an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on subsequent appeal.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quotations omitted). “The proscription covers issues [a higher court has] decided expressly and by necessary implication reflecting the sound policy that when an issue is once litigated and decided, that should be the end of the matter.” Id. (internal citation and quotations omitted). Claims that are raised and rejected on direct appeal cannot be raised under § 2255. United States v. Fields, 761 F.3d 443, 466 (5th Cir. 2014) (citing United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986)); see also Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).
On direct appeal, Vasquez disputed the validity of his guilty-plea conviction on the basis that his attorney did not sign the Amended Factual Resume until the rearraignment hearing. See Appellant's Br., United States v. Vasquez, No. 1710168, at 5 (filed July 31, 2017); see also Appellant's Br., United States v. Vasquez, No. 17-10168, at 15-16 (Vasquez argued that his guilty plea was not knowing and voluntary because his attorney “abandoned him” during the plea-negotiation process, as seen by his failure to sign the Factual Resume). The Fifth Circuit Court of Appeals rejected Vasquez's argument and found that the District Court “did not clearly err in finding that Vasquez's guilty plea was knowing and voluntary and that he had close assistance of counsel.” Vasquez, No. 17-10168 (slip op.), at 2. Vasquez's claim was considered and rejected on direct appeal, and it cannot be considered here now on collateral attack. Consequently, Vasquez's claim that his guilty-plea conviction is invalid should be dismissed.
2. Procedural bar
Next, to the extent that Vasquez's claim is a new argument not raised on direct appeal, his claim is procedurally barred. When a movant fails to raise a claim on direct appeal, the claim is procedurally defaulted and can only be considered under § 2255 if the movant can show cause for his failure to raise the claim on direct appeal and actual prejudice, or that he is actually innocent. United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); see also United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991).
On direct appeal, Vasquez noted that his attorney did not sign the Factual Resume until the rearraignment hearing. Appellant's Br., United States v. Vasquez, No. 17-10168, at 5, 15-16. Now, Vasquez approaches the argument slightly differently by arguing that his Factual Resume is invalid because it was not simultaneously signed by him, his attorney, and the Government's attorney. (CV ECF No. 5 at 7.) To the extent that this slight alteration in Vasquez's argument constitutes a new argument, it is procedurally barred because it could have been but was not raised on direct appeal. Vasquez does not make any attempt to show either cause for his procedural default or actual prejudice resulting from the error. Accordingly, to the extent Vasquez has raised a new claim, it should be dismissed as procedurally defaulted.
The Government also argues that this claim is barred by the appeal-waiver provision in his plea agreement and also fails on the merits. Because this claim is barred by the law-of-the-case doctrine and is procedurally barred, the Court should pretermit consideration of these additional arguments.
B. Vasquez's challenges to his sentence are non-cognizable and procedurally barred.
Vasquez argues that his sentence was improper because the facts used for relevant conduct supporting an upward departure were beyond the scope of the charged conspiracy; and the penalty for failure to appear under § 1346 should have been applied to his sentence. Mot. 7 (CV ECF No. 5).
1. Non-cognizable claims
Vasquez's challenges his sentence by attacking the District Court's application of the sentencing guidelines to his case at sentencing, but these arguments are not cognizable in a § 2255 proceeding. See United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (§ 2255 motions can raise only constitutional errors and other injuries that could not have been raised on direct appeal that will result in a miscarriage of justice, and because misapplications of the sentencing guidelines do not fall into either category, they are not cognizable in § 2255 motions); see also Robertson v. United States, 2021 WL 662108, at *2 (N.D. Tex. Feb. 19, 2021) (citing Williamson, 183 F.3d at 462). Accordingly, Vasquez's challenges to his sentence are not cognizable in this § 2255 action.
2. Procedural bar
Vasquez's challenges to his sentence are also procedurally barred. These claims were not raised on direct appeal, and Vasquez makes no attempt to demonstrate either cause for his procedural default in failing to raise these sentence challenges on direct appeal or actual prejudice resulting from the alleged errors. See Shaid, 937 F.2d at 232.
The Government argues that this claim is barred by the appeal-waiver provision in Vasquez's plea agreement and also fails on the merits. Because these claims are non-cognizable and procedurally barred, the Court should pretermit consideration of these additional arguments.
C. Vasquez has failed to demonstrate ineffective assistance of counsel.
Last, Vasquez argues that he received ineffective assistance of counsel when his attorney did not properly explain the Factual Resume or the PSR; and his attorney did not sign the Factual Resume until the rearraignment hearing. Mot. 8 (CV ECF No. 5).
1. Law-of-the-case doctrine
To the extent Vasquez essentially re-asserts his prior argument that he “shoul've [sic] been allowed to withdraw [his guilty] plea as requested, ” (CV ECF No. 5 at 8), it is barred by the law-of-the case doctrine because he raised and lost the issue on direct appeal. Vasquez, No. 17-10168 (slip op.), at 2 (“[T]he district court did not abuse its discretion in denying Vasquez's motion to withdraw his guilty plea.”); see also Fields, 761 F.3d at 466; Kalish, 780 F.2d at 508.
2. Merits
Vasquez's ineffective assistance of counsel claims also fail on the merits. To prevail on a claim of ineffective assistance of counsel, a movant must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense so gravely as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel's performance must be highly deferential” and “every effort [must] be made to eliminate the distorting effects of hindsight.” 466 U.S. at 689. Courts, therefore, must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.
Even if a movant proves his counsel's performance was deficient, a movant must still prove prejudice. To prove prejudice, a movant must show “a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors.” Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.'” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
In Vasquez's first ineffective assistance of counsel claim, he argues that his attorney did not “completely” explain the factual basis for his plea. Mot. 8 (CV ECF No. 5). However, this argument fails because it is inconsistent with Vasquez's statements at his guilty-plea hearing.
“Solemn declarations in open court carry a strong presumption of verity, ” which create a “formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In the Fifth Circuit, great weight is afforded “to the defendant's statements at the plea colloquy.” United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002). When a § 2255 movant brings a claim that is at odds with his sworn testimony, he must independently corroborate his allegations. United States v. Gonzalez, 139 F.3d 899, 1998 WL 127868, at *2 (5th Cir. 1998) (per curiam). Absent independent and reliable evidence of the likely merit of his allegations, a prisoner “will not be heard to refute [his] testimony given at a plea hearing while under oath.” United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (citing United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)).
At Vasquez's guilty-plea hearing, he testified that he was satisfied with Todd's representation and advice. (CR ECF No. 477 at 4-5.) He also testified that he had carefully reviewed the Factual Resume with his attorney, he understood it “inside out, ” and he agreed with all parts of it. (Id. at 17.) Finally, Vasquez testified that he was familiar with the handwritten changes made to the Factual Resume, he agreed with the changes, and he had no questions about the changes. (Id. at 20.)
In addition, in Vasquez's plea agreement with the Government, he stated that he had “thoroughly reviewed all legal and factual aspects of this case with his lawyer and [was] fully satisfied with that lawyer's legal representation.” (CR ECF No. 222 at 6.) He also “agree[d] that the factual resume he . . . signed [was] true and [would] be submitted as evidence.” (CR ECF No. 222 at 2.) A presumption of regularity is bestowed upon court documents, and for this reason, they are accorded great weight. United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (holding that a signed, unambiguous plea agreement is accorded great evidentiary weight when determining if a guilty plea is knowing and voluntary); see also Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986)).
Vasquez's oral statements under oath at his rearraignment hearing and in his plea agreement serve as a “formidable barrier” to his § 2255 claim. See Blackledge, 431 U.S. at 73-74 (finding that “the representations of the defendant, his lawyer, and the prosecutor at [a plea hearing], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings”). Vasquez has not come forward with any affidavits from third parties to support his allegations and overcome the barrier to his § 2255 claim. Therefore, his claim that his attorney provided ineffective assistance by failing to explain the factual basis should be summarily denied. See Cervantes, 132 F.3d at 1110 (“If [ ] the defendant's showing is inconsistent with the bulk of her conduct or otherwise fails to meet her burden of proof in the light of other evidence in the record, an evidentiary hearing is unnecessary.”) (citing United States v. Smith, 844 F.2d 203, 208 (5th Cir.1988) (per curiam); United States v. Raetzsch, 781 F.2d 1149, 1152 (5th Cir.1986)); see also Blackledge, 431 U.S. at 74 (The subsequent presentation of conclusory contentions that fly in the face of the record are “wholly incredible” and subject to summary dismissal).
In his first ineffective assistance of counsel claim, Vasquez also argues that his attorney failed to “completely explain” the PSR to him. Mot. 8 (CV ECF No. 5). Even if Vasquez could demonstrate that he received deficient performance, he cannot show that he was prejudiced. When Vasquez was sentenced on February 8, 2017, he was represented by attorney Phillip C. Umphres. (CR ECF No. 519 at 1.) Vasquez does not allege that Umphres failed to review the PSR with him. See Mot. (CV ECF No. 5). Moreover, any argument to that effect is inconsistent with the record. At Vasquez's sentencing hearing, he testified that he had “thoroughly review[ed] the presentence report, ” (CR ECF No. 519 at 55) and all the addenda with Umphres, and he had no questions regarding them (id. at 56-59). Consequently, even if Todd failed to review the PSR with Vasquez, the record demonstrates that Vasquez reviewed it with Umphres prior to sentencing, and Umphres more than adequately represented Vasquez's interests with respect to the PSR, as he made several objections to the PSR on Vasquez's behalf. (CR ECF Nos. 478, 484, 493.) In sum, Vasquez has failed to show that he suffered any prejudice, and the Court need not address deficient performance. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995) (“[A] court need not address both prongs of the conjunctive Strickland standard, but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test.”); see also Okechuku v. United States, 2021 WL 2690091, at *9 (N.D. Tex. June 14, 2021) (same), rec. adopted, 2021 WL 2685283 (N.D. Tex. June 30, 2021).
Last, Vasquez argues in his second ineffective assistance of counsel claim that his attorney, Todd, performed deficiently by failing to sign the Amended Factual Resume until the rearraignment hearing. Mot. 8 (CV ECF No. 5). This delay did not lead Vasquez to plead guilty. In fact, this Court found that Vasquez's guilty plea was knowingly and voluntarily made. (CR ECF No. 519 at 53) (“The plea appears absolutely knowing and voluntary from the record[.]). The Fifth Circuit Court of Appeals agreed. Vasquez, No. 17-10168 (slip op.), at 2. This delay in signing also did not preclude Vasquez from moving to withdraw his guilty plea. Rather, it served as a primary ground upon which he sought withdrawal of his guilty plea. Nor did the delay in signing the Factual Resume impact Vasquez's sentence. Todd successfully persuaded the magistrate judge to release Vasquez pre-trial so that he could cooperate with the Government, and based on his cooperation, the District Court granted him a nine-level downward departure. Therefore, Vasquez has not shown prejudice, and the Court need not address deficient performance. See Amos, 61 F.3d at 348; see also Okechuku, 2021 WL 2690091, at *9.
III.
For the foregoing reasons, the Court should DENY the motion to vacate, setaside, or correct sentence under 28 U.S.C. § 2255.
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).