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Espino-Guerrero v. U.S.

United States District Court, W.D. Texas, El Paso Division
Dec 7, 2005
EP-05-CA-181-FM, EP-04-CR-072-FM (W.D. Tex. Dec. 7, 2005)

Opinion

EP-05-CA-181-FM, EP-04-CR-072-FM.

December 7, 2005


MEMORANDUM OPINION ORDER


Before the Court is Petitioner Jose Espino-Guerrero's ("Espino") pro se "Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence" ("Amended Motion to Vacate") [Docket No. 27], filed in the above-captioned cause on July 6, 2005. For the reasons discussed below, the Court concludes that Espino's Amended Motion to Vacate should be summarily dismissed pursuant to Rule 4(b) of the Rules Governing § 2255 Cases. The Court will additionally decline to certify his issues for appeal.

I. BACKGROUND PROCEDURAL HISTORY

A. Criminal Cause No. EP-04-CR-249-FM

On January 14, 2004, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Espino, charging him with importing 100 kilograms or more of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(2)(G) (Count One); and possessing this same quantity of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) (Count Two). At his arraignment before a United States Magistrate Judge on January 23, 2004, Espino was informed that, if convicted of the offenses charged in the Indictment, he faced a term of imprisonment ranging from 5 to 40 years, up to a $2 million fine, and a minimum 4-year term of supervised release. Espino decided to forego trial, choosing instead to accept a plea agreement negotiated by his Court-appointed counsel, Assistant Federal Public Defender William R. Maynard ("Maynard") and the attorney for the Government. The signed plea agreement was filed on February 2, 2004.

The agreement required Espino to make several concessions. First, Espino consented to plead guilty to Count One of the Indictment. Second, Espino 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, Espino could appeal the Court's decision to depart upward from the otherwise applicable punishment range, pursuant to United States Sentencing Guidelines § 5K2.0. The terms of the agreement additionally allowed Espino to challenge his sentence in a motion pursuant to 28 U.S.C. § 2255, provided that the claims in any such motion alleged that Espino's sentence was the result of prosecutorial misconduct of a constitutional dimension or ineffective assistance of counsel. In regard to his waiver of appellate rights, Espino acknowledged that by signing the agreement, he understood and concurred that

Plea Agreem't 1.

Id. at 3.

Id.

Id. at 3-4.

any estimate of the probable sentencing range that may be received from defense counsel, the Government, or the United States Probation Office is not a promise, did not induce the guilty plea or this waiver [of the right to appeal the sentence imposed], and does not bind the Government, the United States Probation Office, or the Court. In other words, the Defendant understands that the Defendant may not challenge the sentence imposed by the District Court, even if it differs substantially from any sentencing range estimated by counsel, the attorney for the Government, or the United States Probation Officer. Realizing the uncertainty in estimating what sentence the Defendant will ultimately receive, the Defendant knowingly and voluntarily waives any rights to appeal the sentence or contest it in any post-conviction proceeding in exchange for the concessions made by the Government in this plea agreement.

Plea Agreem't 4.

Espino also confirmed that Maynard had advised him as to the nature of the charges against him, any possible defenses to them, and the range of possible sentences. Espino moreover affirmed that he was satisfied that Maynard had performed competently.

Id. at 5.

Id.

Lastly, the agreement required Espino 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, Espino specifically admitted that he imported 203.24 kilograms into the United States in return for $1000.

Id.

Id. at 6.

In exchange for Espino's concessions, the Government consented to dismiss Count Two of the Indictment at sentencing. The Government also promised not to oppose the award of a two-level downward adjustment for acceptance of responsibility, and to move for a third level if the Court granted the initial two-level adjustment. It further pledged not to oppose an adjustment for minor role, if the evidence supported such a finding. The Government lastly agreed not to oppose a two-level downward "safety valve" adjustment pursuant to United States Sentencing Guidelines § 2D1.1(b)(6), provided that: (1) Espino qualified for such an adjustment under United States Sentencing Guidelines §§ 5C1.2(1)-(4); (2) Espino debriefed within the period of time set forth in the plea agreement; and (3) in the Government's discretion, it determined that any such disclosure by Espino had been complete and truthful, meeting the requirements of § 5C1.2(5). By signing the agreement, Espino acknowledged that the Court was not bound to award the adjustments mentioned in the document, as that decision ultimately remained in the Court's discretion.

Id. at 1.

Plea Agreem't at 2.

Id.

Id. at 2-3.

Id. at 3.

Accompanied by Maynard, Espino accordingly appeared before the Court on February 3, 2004 for rearraignment and entry of a guilty plea to Count One of the Indictment. Espino was again advised of the charges against him and the maximum punishment to which he could be subjected if he decided to plead guilty. The Court also informed Espino of the rights he would waive by pleading guilty. The Court further warned Espino 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 Espino entered his guilty plea, if he still chose to do so upon receiving the Court's admonishments.

Plea Tr. 5.

Id. at 7-9.

Id. at 5-6.

Espino affirmed that he understood the information conveyed to him by the Court and that no one had threatened or coerced him into pleading guilty. Espino also asserted that Maynard had reviewed the plea agreement with him and explained its terms. Espino testified that, other than the pledges contained in the written plea agreement, no one had made any promises or secret deals with him in exchange for his guilty plea. Espino additionally told the Court that he had been afforded adequate time to consult with Maynard about his case and that he was satisfied with Maynard's representation. Lastly, Espino testified that the factual basis offered by the Government for his guilty plea was true. The Court accepted Espino's plea, finding that it was knowing and voluntary, and deferred sentencing to allow for the preparation of the aforementioned Presentence Report.

Id. at 6.

Id.

Id. at 6-7.

Id. at 7.

Id. at 9-10.

Id. at 10-11.

In the Presentence Report, the Probation Office tendered the following calculations to the Court regarding Espino's offense level and criminal history category. The Probation Office stated that, under United States Sentencing Guidelines § 2D1.1(a)(3), Espino's base offense level for importing 203.24 kilograms of marijuana should be Level 26. Because Espino had more than one scoreable criminal history point, the Probation Office advised the Court that Espino did not qualify for a two-level downward "safety valve" adjustment pursuant to United States Sentencing Guidelines § 5C1.2. It also recommended against awarding Espino a downward adjustment for a minor role in the offense, given his history of transporting illicit drugs into the United States. The Probation Office therefore calculated Espino's adjusted offense level as level 26.

Present. Inv. Rep. ¶ 10.

Id. at ¶ 12.

Id. at ¶ 14.

Id. at ¶ 16.

Working from Espino's adjusted offense level of 26, the Probation Office recommended that Espino receive a three-level reduction for acceptance of responsibility due to his prompt acknowledgment of culpability upon his arrest. However, the Probation Office also noted that Espino was at least 18 years of age when he committed the instant offense and that the offense was one involving trafficking in controlled substances. Furthermore, it informed the Court, Espino had at least two prior felony convictions for trafficking in controlled substances. The Probation Office advised the Court that, pursuant to the terms of United States Sentencing Guidelines § 4B1.1(b)(B), Espino was therefore a career offender and the Court should consequently adjust his offense level upwards to level 34. After subtracting three levels for Espino's acceptance of responsibility, the Probation Office arrived at a total offense level of 31. The Probation Office determined that Espino had nine scoreable criminal history points, but noted that, due to his status as a career offender, Espino's Criminal History Category was automatically set at Category VI. The Probation Office reported that the corresponding range of imprisonment was 188 to 235 months.

Id. at ¶¶ 9 17.

Id. at ¶ 18.

Id.

Present. Inv. Rep. ¶ 18.

Id. at ¶¶ 19-20.

Id. at ¶ 27.

Id. at ¶ 43.

Maynard did not file objections to the Presentence Report. At sentencing, Maynard informed that Court that, although the career offender enhancement seemed unduly harsh to him, he conceded that it was lawful, given Espino's prior convictions, and stated that he could find no basis for challenging the Probation Office's calculations under the Guidelines. Maynard then made the Court aware of his client's familial circumstances and pleaded for leniency.

Addendum to Present. Inv. Rep. 1; Sent. Tr. 2.

Sent. Tr. 2-3.

Sent. Tr. 4-6.

During the sentencing proceeding, Espino told the Court that he had reviewed the Presentence Report. Espino then stood silent when Maynard informed the Court that he had been unable to find any basis for objection to the report's recommendations. Immediately after Maynard stated that he had no objections to the Presentence Report, the Court invited Espino to speak on his own behalf, if he wished, before the Court imposed sentence. Espino declined the invitation.

Sent. Tr. 2.

Id.

Id.

Id. at 3.

The Court accepted the Probation Office's calculations regarding the applicable guidelines range and sentenced Espino to a 188-month term of imprisonment and a 4-year term of non-reporting supervised release. It additionally ordered Espino to pay a $7500 fine and a $100 special assessment. The Court entered Judgment on May 7, 2004. Espino did not appeal.

Id. at 6.

Id. at 6, 8. The Court initially assessed a $15,000 fine, but upon Maynard's immediate request, rescinded the original ruling and reduced the fine to $7,500. Id. at 8.

B. Espino's Amended Motion to Vacate Pursuant to 28 U.S.C. § 2255

The Court has liberally read Espino's Amended Motion to Vacate, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Espino to raise the following challenges to his conviction and sentence. First, Espino alleges that his guilty plea was induced by certain promises or estimates made by Maynard regarding Espino's ultimate punishment range if Espino signed the plea agreement. Espino claims that his guilty plea was therefore rendered involuntary ("Claim One").

Second, Espino asserts that Maynard rendered ineffective assistance because, although the Government agreed not to oppose a minor role adjustment, Maynard failed to argue for the adjustment at sentencing ("Claim Two"). Third, Espino faults Maynard for failing to help him to prepare a declaration pursuant to United States Sentencing Guidelines §§ 2D1.1(b)(6) and 5C1.2, so that he could receive a two-level downward "safety valve" adjustment ("Claim Three").

Fourth, Espino asserts that Maynard was ineffective because he negotiated a plea agreement with the Government while Blakely v. Washington, 542 U.S. 296 (2004), was pending before the Supreme Court ("Claim Four"). But for Maynard's deficient performance, says Espino, he would have "sought a continuance" and then rejected the plea agreement in order to preserve his appeal rights. Espino predicts that his case would have still been on appeal when the Supreme Court extended Blakely's holding to the United States Sentencing Guidelines in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). With his judgment not yet final, Espino asserts, the rule announced in Booker would have applied retroactively to him. Espino asserts that, under Booker, he would have been at level 26, Criminal History Category III, with a corresponding sentencing range of 78-97 months. Fifth, Espino argues that his sentence is unconstitutional under the holding of Booker ("Claim Five").

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.

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).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." III. THE VOLUNTARINESS OF ESPINO'S GUILTY PLEA AND VALIDITY OF HIS RELATED WAIVERS

U.S.C.S. § 2255 Proc. R. 4(b) (2004).

In Claim One, Espino challenges the voluntariness of his guilty plea and therefore also challenges the enforceability of the waivers contained in the plea agreement. Because the validity of Espino's plea and related waivers affect whether he has waived his right to pursue certain claims in this action, the Court first considers the voluntariness of Espino's plea.

Espino contends that his plea was rendered involuntary and his waiver of appellate rights unenforceable due to Maynard's alleged estimate or promise that Espino would be eligible for and would actually receive certain favorable sentencing adjustments. Specifically, Espino asserts that Maynard promised that, if Espino accepted the Government's plea offer and pleaded guilty to Count One of the Indictment, Espino would be entitled to a 3-level reduction for acceptance of responsibility; a 2-level reduction for minor role, and a 2-level reduction for safety valve. Espino argues that the foregoing reductions would have given him a total adjusted offense level of 27 and placed him in Criminal History Category VI. The corresponding sentencing range would have been 130 to 162 months. However, because Espino was later determined to be a career offender, his total offense level actually came to level 31, with a corresponding imprisonment term of 188 to 235 months. Espino implies that he would not have accepted the plea agreement and pleaded guilty if he had known that he faced a career offender enhancement and could not receive the full benefit of the plea agreement, but would instead have gone to trial. For the reasons discussed below, the Court finds Espino's argument unavailing.

A. Legal Standard — Voluntariness of Guilty Pleas

A guilty plea is constitutionally valid only to the extent it is voluntary and intelligent. A plea does not qualify as voluntary and intelligent unless the defendant first: (1) was informed of the nature of the charges against him and all direct consequences of his plea; and (2) understood the constitutional rights that he was waiving by entering a guilty plea.

See Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

See Brady, 397 U.S. at 754-55 (setting forth the constitutional standard for voluntary and intelligent pleas and holding that capital defendant's guilty plea in return for a life sentence, when faced with the strong case against him and the possibility that he would receive the death penalty, was intelligently and voluntarily made); Daniel v. Cockrell, 283 F.3d 697, 702-3 (5th Cir. 2002) (reciting the Brady standard for voluntary and intelligent pleas).

Voluntariness is determined by examining all the relevant circumstances surrounding it. A court considering a defendant's challenge to his guilty plea focuses on "three core concerns," that is, the absence of coercion, the defendant's understanding of the charges, and whether he had a "realistic understanding of the consequences of a guilty plea." A defendant has a realistic understanding of the consequences of a guilty plea if he knows the "immediate and automatic consequences of that plea such as the maximum sentence length or fine."

Brady, 397 U.S. at 749; see United States v. Cross, 57 F.3d 588, 591 (7th Cir. 1995) (citations omitted) (explaining that, when examining the totality of the circumstances, a reviewing court should "consider the complexity of the charge, the defendant's level of intelligence, age, and education, whether the defendant was represented by counsel, the judge's inquiry during the plea hearing and the defendant's statements, as well as the evidence offered by the government.").

United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993).

Duke v. Cockrell, 292 F.3d 414, 416 (5th Cir. 2002).

An unfulfilled or unfulfillable promise may render a plea involuntary. "When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." If, however, an alleged unfulfilled promise does not appear in the written plea agreement and such promise is inconsistent with the defendant's statements and representations made in open court, the defendant must carry a heavy burden in order to prevail on a claim that his plea was involuntary. In the latter circumstances, the defendant must prove: (1) the exact terms of the alleged promise; (2) exactly when, where, and by whom the promise was made; and (3) the precise identity of an eyewitness to that promise. If the defendant produces "independent indicia of the likely merit of [his] allegations, typically in the form of one or more affidavits from reliable third parties, [he] is entitled to an evidentiary hearing on the issue." If, however, the defendant's "showing is inconsistent with the bulk of [his] conduct or otherwise fails to meet [his] burden of proof in the light of other evidence in the record, an evidentiary hearing is unnecessary."

See Brady, 397 U.S. at 755 (stating that a defendant's guilty plea is involuntary where it is induced by deception, an unfulfillable promise, or misrepresentation).

Santobello v. New York, 404 U.S. 257, 262 (1971).

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) (citing Allison for the proposition that a defendant's sworn statements in open court are accorded great weight); United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (crediting district court's determination, made during the plea colloquy, that the defendant had not been pressured, rather than the defendant's later self-serving statements); United States v. Abreo, 30 F. 3d 29, 31 (5th Cir. 1994) (explaining that a defendant's statements during plea colloquy are afforded great weight).

United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).

Id.

Id.

Only an unfulfilled or unfulfillable promise made to the defendant by the Court, the prosecutor, or defense counsel may render a plea involuntary. However, mere unanticipated and adverse developments arising after the entry of a guilty plea, made pursuant to a plea agreement which expressly states that it does not bind the sentencing court, do not make a bargained for adjustment unfulfillable or render the plea involuntary. When a defendant decides to plead guilty rather than to exercise his right to trial, he does not know with specificity what claims of error, if any, he is foregoing in exchange for the Government's concessions. This lack of advance knowledge, however, does not render his guilty plea unknowing or involuntary. A plea of guilty "is a solemn act not to be disregarded because of belated misgivings about its wisdom."

Brady, 397 U.S. at 755.

See United States v. Hahn, 359 F.3d 1315, 1326 (10th Cir. 2004) (per curiam) (stating that when a defendant decides to plead guilty, he does not know with specificity what claims of error he may be waiving, but this lack on advance knowledge does not make his plea involuntary); United States v. Gomez, 326 F.3d 971, 974-75 (8th Cir. 2003) (concluding that the fact that a defendant was later determined to be a career offender did not render a bargained-for adjustment in her plea agreement an unfulfillable promise, because the sentencing stipulations in the agreement were clearly stated to be nonbinding on the district court); United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (noting that defendants who appeal from sentences following plea agreements always point to unanticipated and unwelcome developments, but such subsequent developments do not render the plea and waivers involuntary or unenforceable).

Id.; Gomez, 326 F.3d at 974-75; Wenger, 58 F.3d at 282.

Gomez, 326 F.3d at 974.

A guilty plea is also vulnerable to attack on the grounds that defense counsel did not provide the defendant with reasonably competent advice. As the Court will set forth at greater length later in this Memorandum Opinion and Order, an ineffective of assistance of counsel claim has two components: (1) deficient performance and (2) prejudice flowing directly from counsel's alleged errors. In the context of a challenge to a guilty plea, the defendant must demonstrate not only that his attorney actually erred, but also must show that there is a reasonable probability that, but for counsel's purported errors, the defendant would not have pleaded guilty, but would have instead insisted on going to trial.

Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing to Strickland v. Washington, 466 U.S. 668 (1984)).

Armistead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).

There is a strong presumption that counsel's performance fell within the range of reasonable assistance, and the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Moreover, in considering whether the result of the proceeding would likely have been different, absent counsel's alleged errors, the Court must evaluate the totality of the evidence that was before it. B. Discussion

Strickland, 466 U.S. at 689, 691.

Id. at 698.

Insofar as Espino can be understood to assert that Maynard promised that he would receive certain favorable adjustments to the otherwise applicable punishment range, and such promise induced Espino's plea, no such guarantee appeared in the written plea agreement. The plea agreement, in fact, expressly stated that the favorable adjustments referenced therein remained within the ultimate discretion of the Court. It also stated that any predictions made by counsel, the attorney for the Government, or the Probation Office as to Espino's probable sentencing range were not promises, but estimates, and were not binding upon the Court.

The Court agrees with the reasoning of its sister court in United States v. Cruz-Barcena, 2005 U.S. Dist. LEXIS 14658, *8 n. 2, (N.D. Tex. 2005), and concludes that the facts of the case at bar, in which Espino pleaded guilty pursuant to a plea agreement, are distinguishable from the critical facts underpinning the Fifth Circuit Court of Appeals' holdings in United States v. Herrera, 412 F.3d 577 (5th Cir. 2005), and United States v. Grammas, 376 F.3d 433 (5th Cir. 2004). In Herrera, the defendant's attorney allegedly advised his client to reject a plea agreement which would have subjected him to a maximum imprisonment term of 48-months. 412 F.3d at 579. According to the defendant, his counsel's alleged advice was based on a mistaken belief that his client would face a maximum imprisonment term of 51 months if he were found guilty at trial. Id. However, the defendant actually faced a sentencing range of 78 to 97 months if he went to trial and were convicted. Id. The defendant, who stood trial, was convicted, and received a 78-month sentence, maintained that he would have accepted the plea agreement if he had understood his true sentencing exposure at trial. Id. On appeal from the district court's denial of the defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, the Court of Appeals explained that an attorney who underestimates his client's sentencing exposure by 27 months performs deficiently because he does not provide his client with the information needed to make an informed decision about accepting a plea offer or going to trial. Id. at 581. In remanding the case to the district court for an evidentiary hearing, the Court of Appeal also noted that the district court had not had the benefit of its decision in Grammas when it dismissed the defendant's Motion to Vacate. Id. at 581-82. In Grammas, a case in which the record clearly showed that the defendant's attorney had dramatically miscalculated his client's sentencing exposure, the Court of Appeals adopted an "any amount of jail time" test to determine whether prejudice flowed from counsel's erroneous advice about sentencing exposure and held that grossly underestimating a defendant's exposure under the sentencing guidelines constitutes ineffective assistance of counsel. Id.
In Cruz-Barcena, the defendant accepted a plea agreement in which he consented to plead guilty to Illegal Re-entry, in violation of 8 U.S.C. § 1326, to admit that he had been previously deported from the United States after being convicted of an aggravated felony, and to acknowledge that no one could predict what guideline range would apply to his offense until after a presentence investigation had been conducted. 2005 U.S. Dist. LEXIS 14658, *2. After being fully admonished regarding the range of punishment, including the maximum possible sentence of 20 years, the defendant entered a guilty plea. Id. at *3. At sentencing, the defendant's base offense level of 8 was enhanced by 16 levels due to his prior felony conviction. Id. at *4. After 3 levels were subtracted for acceptance of responsibility, the defendant's total offense level came to level 21, Criminal History Category II, with a corresponding imprisonment range of 41 to 51 months. Id. The district court sentenced the defendant to a 41-month term of imprisonment. Id. at *5.
The defendant argued that his attorney had performed deficiently because he had estimated that the defendant would receive a sentence of about two years, and but for this deficient advice, the defendant would not have received a 41-month sentence. Id. at *6-7. In rejecting the defendant's claim, the district court noted in passing that the facts at bar were distinguishable from the facts of Herrera. Id. at *8 n. 2. Unlike both of the defendants in Herrera and Grammas, the district court observed, Cruz Barcena did not go to trial but rather pleaded guilty. Id. Further, the district court emphazied, Cruz-Barcena's attorney allegedly provided an estimate of his client's eventual sentence, rather than a definitive (but erroneous) statement regarding the maximum penalty his client faced. Id.
Here, like Cruz-Barcena, Espino did not stand trial. Nor does Espino contend that Maynard made a definitive but incorrect statement regarding the maximum possible punishment for Espino's offense if he went to trial. The Court accordingly finds that the holdings of Herrera and Grammas are inapposite to Espino's claim.

As noted previously, because Maynard's alleged promise does not appear in the plea agreement, Espino must describe the exact terms of the purported promise, state exactly when and where Maynard allegedly made such a guarantee, and identify an eyewitness to that promise. Assuming for the sake of argument that Espino has satisfied the first requirement, the Court finds that he not satisfied his remaining obligations, as he has not stated where and when Maynard allegedly made the promise, nor has he named an eyewitness to the promise and produced affidavits from reliable third parties to corroborate his claim. The Court concludes that Espino is therefore not entitled to an evidentiary hearing in this matter.

Moreover, even if Espino had satisfied the requirements listed above, the Court finds that he would still not be entitled to an evidentiary hearing because the record in this cause does not support his allegations. At the plea hearing, Espino was fully admonished regarding the charges against him and the maximum punishment he faced. Espino told the Court that he understood the charges against him and the maximum punishment to which a guilty plea would subject him. By signing the plea agreement, Espino had also already acknowledged the uncertainty of his ultimate sentence, and knowing that risk, nevertheless decided to plead guilty. Espino additionally told the Court that no one had made any promises or any kind of secret deals with him that were not contained in the plea agreement he signed, in exchange for his entering a guilty plea.

Espino's later testimony and demeanor at the sentencing hearing is likewise inconsistent with his claim, but entirely consistent, on the other hand, with a finding that Maynard did not guarantee that Espino would receive all the adjustments set forth in the plea agreement or otherwise mislead him as to his sentencing exposure. The Court observed Espino carefully at sentencing and noted no expression (verbal or otherwise) of surprise or distress at the mention of the career offender enhancement and concomitant punishment range. There is also no record of Espino seeking new counsel or attempting to withdraw his plea after he reviewed the Presentence Report, as one might reasonably expect if his contentions were true. In sum, nothing in the record or Espino's present pleadings persuades the Court that it should afford his § 2255 allegations greater weight than his sworn statements at the plea hearing.

To the extent Espino complains that Maynard's alleged estimate of his sentencing exposure did not match the punishment range that the Court ultimately determined to be applicable, the Court finds that Maynard's purported estimate does not, in and of itself, amount to ineffective assistance of counsel or render the plea involuntary. Espino has not shown, as it is his burden to do, that Maynard's alleged estimate was professionally unreasonable based on the information available to Maynard at the time he made the prediction, including the information that Espino himself provided (or withheld) as to his criminal history.

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).

Furthermore, even assuming that Espino did not know, before entering his plea, that he might be subject to a career offender enhancement which would render him ineligible for certain adjustments or that he had too many scoreable points to qualify for other adjustments, the Court finds it extremely improbable that Espino would have chosen to go to trial if he had known. Espino does not contest that he is guilty of the offense to which he pleaded guilty, nor does he challenge the Court's finding that he is a career offender under United States Sentencing Guidelines § 4B1.b(B) or that he had nine scoreable criminal history points. And, as noted previously, he made no effort to withdraw his plea. If he had gone to trial, Espino would have lost the benefit of the three-level reduction for acceptance of responsibility. If Espino were convicted, which seems almost certain given the state of the Government's evidence against him, which included self-incriminating statements he made subsequent to being arrested and administered Miranda warnings, Espino would therefore still have been subject to a career-offender enhancement. As a career offender without the benefit of a downward adjustment for acceptance of responsibility, Espino's total offense level would have been set at level 34, Criminal History Category VI, with a corresponding imprisonment range of 262 to 327 months. At a minimum, Espino's sentencing exposure would have been 74 months greater than the 188-month sentence he actually received, had he gone to trial and been convicted.

Given the totality of the circumstances, the Court concludes, as it did at the plea hearing, that Espino's plea was voluntarily and intelligently made. The Court further finds that Maynard took no action to undermine the voluntary and intelligent nature of Espino's guilty plea. Claim One is accordingly dismissed with prejudice.

Because the Court has found that Espino's plea was voluntary and intelligent, it also finds that the waivers contained in the plea agreement are fully enforceable. In accepting the plea agreement, Espino specifically agreed to waive his right to contest or collaterally attack his sentence by means of any post-conviction proceeding under 28 U.S.C. § 2255, except on the basis of prosecutorial misconduct or ineffective assistance of counsel. The Court accordingly concludes that the express terms of Espino's plea agreement do not foreclose review of Claims Two, Three, and Four. That is, the plea agreement does not foreclose review of Espino's claims that Maynard's ineffective assistance prejudiced him at sentencing, as the agreement's terms specifically excepted such challenges. In contrast, Espino's plea agreement bars review of Claim Five ( i.e., Espino's claim that his sentence is unconstitutional under Booker), as that claim does not implicate the effectiveness of his counsel or involve prosecutorial misconduct.

Having determined that Espino is not entitled to review of Claim Five, the Court now turns to the merits of Espino's remaining allegations.

IV. LEGAL STANDARD — INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Espino's remaining claims implicate the Sixth Amendment right to counsel. Although the Court has already touched upon the legal standard applicable to ineffective assistance claims as part of its discussion regarding the voluntariness of Espino's guilty plea, it now sets forth that standard more fully.

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. V. THE MERITS OF ESPINO'S REMAINING CLAIMS A. Failure to Argue for a Minor Role Adjustment

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).

Espino faults Maynard for failing to argue in favor of a minor role reduction at sentencing. For the reasons discussed below, the Court finds that Espino has failed to carry his burden as to either prong of the Strickland test for ineffective assistance of counsel.

Espino does not dispute that he was properly categorized as a career offender under United States Sentencing Guidelines § 4B1.1(b), nor is there any non-frivolous basis for such a challenge. Although career offenders are eligible for downward adjustments for acceptance of responsibility, such as the one Espino received, they are not eligible for minor role adjustments. Because Espino's status as a career offender rendered him ineligible for a minor role adjustment, any such argument advanced by Maynard at sentencing would have been frivolous. Maynard did not perform deficiently by declining to raise a meritless objection. Moreover, Espino cannot show prejudice, because even if the Court agreed that Espino was a minor participant in the offense, it could not have lawfully reduced Espino's minimum term of imprisonment below 188 months on this basis. Claim Two is accordingly dismissed with prejudice.

United States v. Perez, 328 F.3d 96, 97 (2d Cir. 2003) (per curiam) (noting that all circuit courts to have considered the issue have concluded that career offenders cannot receive a minor role adjustment, to the extent that such an adjustment would result in an offense level falling below the career offender minimum established by United States Sentencing Guidelines § 4B1.1(b), and joining it sister circuits in that conclusion); United States v. Ward, 144 F.3d 1024, 1036 (7th Cir. 1998) (interpreting the United States Sentencing Guidelines to preclude a reduction for a defendant's minor or minimal role in the offense for career offenders); United States v. Johnson, 155 F.3d 682, 684 n. 4 (3rd Cir. 1998) (holding that downward adjustments for minor role do not apply in the career offender context); United States v. Beltran, 122 F. 3d 1156, 1160 (8th Cir. 1997) (concluding that the offense level reductions provided in United States Sentencing Guidelines § 3B1.2 for a mitigating role in the offense simply do not apply in the career offender context); United States v. Griffin, 109 F.3d 706, 708 (11th Cir. 1997) (per curiam) (determining that the United States Sentencing Guidelines' provisions regarding role reductions do not apply to career offenders); United States v. McCoy, 23 F. 2d 216, 218 (9th Cir. 1994) (per curiam) (concluding that career offenders are ineligible for minor role adjustments, as such adjustments are not explicitly incorporated into the Sentencing Guidelines, as they were amended on November 1, 1989, and that to rule otherwise would be inconsistent with Congress' intent to punish career offenders with a sentence that is at or near the maximum term authorized by statute); United States v. Morales-Diaz, 925 F.2d 535, 540 (1st Cir. 1991) (holding that mitigating role reductions do not apply to career offenders).

B. Failure to Prepare a Safety Valve Statement

Espino alleges that Maynard was ineffective for failing to help him to prepare a debriefing statement that would qualify Espino for a two-level downward adjustment pursuant to United States Sentencing Guidelines §§ 2D1.1(b)(6) and 5C1.2. For the reasons discussed below, the Court concludes that Espino's argument is without merit.

United States Sentencing Guidelines § 5C1.2 (the "safety valve" provision) limits the applicability of statutory minimum sentences in certain cases. To qualify for a safety valve reduction, a defendant must meet each of five requirements. The first of those requirements is that the defendant have no more than one criminal history point. Here, Espino had nine scoreable criminal history points, which precluded a safety valve reduction. Espino has failed to show that Maynard performed in an professionally unreasonable manner by failing to prepare a statement that would accrue no benefit to his client at or after sentencing. Espino has also failed to show prejudice flowing from Maynard's alleged failure to prepare a debriefing statement, as Espino would clearly not have qualified for a two-level downward adjustment even if Maynard had assisted him in preparing a such a statement. Claim Three is therefore dismissed with prejudice.

See U.S.S.G. § 5C1.2 (directing a district court, in sentencing defendants convicted of an offense under 21 U.S.C. §§ 841, 844, 846, 960, or 963, to disregard the statutory minimum sentences for the offense if the defendant meets five requirements).

U.S.S.G. § 5C1.2(a).

U.S.S.G. § 5C1.2(a)(1).

C. Negotiating a Plea Agreement While Blakely Was Pending

Espino faults Maynard for negotiating a plea agreement while the Blakely case was pending before the Supreme Court. For the reasons discussed below, the Court finds that Espino has failed to carry his burden regarding either prong of the Strickland test for ineffective assistance of counsel.

The constitutionality of the federal sentencing scheme was not in doubt before Blakely's release on June 24, 2004 and not resolved until the Supreme Court decided Booker on January 12, 2005. Here, the Court entered Judgement in Espino's case on May 7, 2004, forty-eight days before Blakely was decided and well past the time for seeking relief in a direct appeal. Moreover, the Blakely opinion itself expressly reserved judgment as to constitutionality of the Federal Sentencing Guidelines under the Sixth Amendment. In the absence of any Supreme Court opinion expressly rejecting the constitutionality of the Federal Sentencing Guidelines, the Court concludes that Maynard's decision to negotiate a plea agreement did not render his performance constitutionally ineffective.

See Mistretta v. United States, 488 U.S. 361, 391 (1989) (upholding the constitutionality of the Guidelines against an Equal Protection and over-delegation-of-congressional authority challenge).

Blakely, 542 U.S. 296, 305 n. 9.

Further, the Court finds that Espino has failed to show prejudice. The Presentence Report shows that Espino's sentence was enhanced based on his extensive criminal history and a drug quantity that he specifically admitted to as part of the plea agreement. The rule announced in Booker does not implicate the constitutionality of sentencing enhancements based on an offender's recidivism or on facts admitted to by him, but rather reaffirms that "[a]ny fact ( other than that of 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." Thus, even if Maynard had raised an objection based on the reasoning of Blakely (and by extension, Booker), the Court concludes that it would have been unavailing.

Booker, ___ U.S. at ___, 125 S. Ct. at 756 (emphasis added).

Because the Court finds that Espino has failed to demonstrate either deficient performance on the part of Maynard or prejudice flowing from Maynard's purported errors, it will dismiss Claim Four of Espino's Motion to Vacate with prejudice.

VI. 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.

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 Espino's pleading, the Court concludes that jurists of reason would not debate whether Espino 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 Espino's claims for relief.

VII. CONCLUSION ORDER

In sum, the Court concludes that Petitioner Jose Espino-Guerrero's Amended Motion to Vacate pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:

1. Petitioner Jose Espino-Guerrero's pro se "Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" [Docket No. 27], filed on July 6, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Jose Espino-Guerrero 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 Espino-Guerrero's pro se "Amended Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody," filed on July 6, 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 Jose Espino-Guerrero's "Amended Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Jose Espino-Guerrero is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.


Summaries of

Espino-Guerrero v. U.S.

United States District Court, W.D. Texas, El Paso Division
Dec 7, 2005
EP-05-CA-181-FM, EP-04-CR-072-FM (W.D. Tex. Dec. 7, 2005)
Case details for

Espino-Guerrero v. U.S.

Case Details

Full title:JOSE ESPINO-GUERRERO, Fed. Reg. No. 78481-080, Petitioner, v. UNITED…

Court:United States District Court, W.D. Texas, El Paso Division

Date published: Dec 7, 2005

Citations

EP-05-CA-181-FM, EP-04-CR-072-FM (W.D. Tex. Dec. 7, 2005)