Opinion
EP-04-CA-206-PRM, EP-03-CR-945-PRM.
October 3, 2005.
MEMORANDUM ORDER AND OPINION DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Jose Luis Wences' ("Wences") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 34], filed on May 27, 2004. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") [Docket no. 40] on August 11, 2004. Wences did not file a Reply. After considering the record and parties' pleadings in this cause, the Court finds that Wences is not entitled to relief regarding his claims. Accordingly, it will deny his Motion to Vacate in its entirety and dismiss this matter with prejudice. The Court will additionally deny Wences a Certificate of Appealability.
On January 21, 2005, after the Government had already answered Wences' pro se Motion to Vacate, attorney Gary J. Hill ("Hill") entered an appearance of Wences' behalf and moved the Court for leave to file an amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, based on the Supreme Court's then-recent decision in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005) (" Booker"). See FED.R.CIV.P 15(a) (stating that once the opposing party has answered the party's original pleading, the party may only amend his pleading with either prior leave of the Court or written consent of the adverse party). The Government filed a response in opposition to Hill's request on January 28, 2005.
Without waiting for the Court to rule on the merits of his client's motion for leave of Court to file an amended pleading, on January 31, 2005, Hill filed an Amended Motion to Vacate, Set Aside or Correct Sentence ("Amended Motion to Vacate") pursuant to 28 U.S.C. 2255. In an order entered on February 2, 2005, the Court directed the District Clerk to summarily strike the Amended Motion to Vacate from the record in this cause and to notify the parties that, since the Government had already answered Wences' original pleading, under Federal Rule of Civil Procedure 15(a), Wences could not amend his original submission without prior leave of Court or the written consent of the Government.
On February 11, 2005, Hill moved the Court to reconsider its order striking his Amended Motion to Vacate from the record. The Court denied his request in an order dated February 15, 2005. In an order entered March 2, 2005, for the reasons discussed at length therein and herein incorporated by reference, the Court determined that the rule announced in Booker does not retroactively apply to judgments, such as Wences', that were already final when the Supreme Court released Booker on January 12, 2005. The Court accordingly denied Wences' motion for leave to file an amended Motion to Vacate. Only Wences' original pro se Motion to Vacate is therefore before the Court.
I. BACKGROUND A. Criminal cause no. EP-03-CR-945-PRM
On May 14, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Wences, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government timely filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), based on Wences' prior aggravated felony conviction. Wences, deciding to forego trial, pleaded guilty to the Indictment on July 21, 2003. The Court accepted the plea on August 4, 2003 and set the matter for sentencing. The Court entered Judgment on September 26, 2003, sentencing Wences to a 41-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Wences to pay a $100 special assessment. Wences did not appeal.
B. Wences' Motion to Vacate pursuant to 28 U.S.C. § 2255
The Court has liberally read Wences' Motion to Vacate pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands him to raise two claims. First, he alleges that Eduardo N. Lerma ("Lerma"), the attorney appointed to represent him at sentencing, rendered ineffective assistance because he did not file objections to the Presentence Report ("PSR") ("Claim One"). Second, Wences argues that the Government secured his conviction with evidence obtained pursuant to an unlawful arrest ("Claim Two"). Wences states that he did not raise these claims previously because he did not understand his rights. II. MOTIONS TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a 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. With these principles in mind, the Court turns to Wences' claims for relief.
See Withrow v. Williams, 507 U.S. 680 (1993).
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. THE MERITS OF CLAIM ONE A. Legal standard — ineffective assistance of counsel
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id.
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the 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 presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. B. Discussion
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
As set forth above, to prevail on his ineffective assistance claim, Wences must show both that Lerma performed deficiently and that the deficient performance directly prejudiced his defense. The Court finds that Wences has failed to carry his burden in either respect.
Wences alleges that Lerma failed to file objections to the PSR. The record, however, flatly contradicts his assertions. In fact, Lerma submitted seven objections to the PSR. Among other exceptions he took to the report, Lerma argued that Wences' deportation did not follow a conviction for an aggravated felony and that the PSR over-represented his client's criminal history. Lerma moreover filed a Motion for Downward Departure on his Wences' behalf. To the extent Wences contends that Lerma should have filed different or additional objections, he fails to identify what those challenges should have been and how Lerma's decision not to bring them resulted in harm. Wences cannot escape his burden of demonstrating deficient performance and prejudice by merely stating his conclusion. IV. CLAIM TWO IS PROCEDURALLY BARRED FROM A MERITS REVIEW
United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005) (explaining that a petitioner who accuses his counsel of ineffectiveness cannot escape his burden of demonstrating both cause and prejudice by merely stating his conclusion); see Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (stating that mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue).
Wences alleges that the Government secured his conviction through the use of evidence it obtained in an unlawful arrest. The Court concludes that Wences has procedurally defaulted this claim by failing to raise it in a direct appeal and has not shown cause and prejudice sufficient to overcome the procedural hurdle to review. Wences states that he did not raise this issue in a direct appeal due to his ignorance of his rights. The Court finds that Wences' conclusory allegation does not raise to the level of "cause" under the applicable standard. Moreover, even if this Court were to review Wences' claim on the merits, it would deny relief, as he has failed to state any facts whatsoever in support of his claim.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2003) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Wences' pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Jose Luis Wences' Motion to Vacate, Set Aside, or Correct Sentence filed 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 Jose Luis Wences' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on May 27, 2004, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Jose Luis Wences 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 Jose Luis Wences' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on May 27, 2004. 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 Jose Luis Wences' 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 FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.