Morales-Solisv.U.S.A.

United States District Court, N.D. Texas, Lubbock DivisionMar 28, 2002
CIVIL ACTION 5:99-CV-232 C (Criminal No. 5:98-CR-142-C) (N.D. Tex. Mar. 28, 2002)

CIVIL ACTION 5:99-CV-232 C (Criminal No. 5:98-CR-142-C)

March 28, 2002


ORDER


SAM R. CUMMINGS, U.S. District Judge.

On this day the Court considered the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pro se by Guadalupe Morales-Solis. The Respondent United States of America ("Government") filed an answer. Although Movant was subsequently given permission to file a late response to the answer, he failed to file a response or any objections. After considering all relevant evidence and arguments, the Court is of the opinion that Movant's Motion to Vacate, Set Aside, or Correct Sentence should be denied.

Movant filed his original § 2255 motion on August 2, 1999, and it was assigned Civil No. 5:99-CV-232-C. He then filed a second § 2255 motion on November 15, 1999, after the Government had filed a response to his first motion, and it was assigned Civil No. 5:99-CV-304-C. By Order dated November 23, 1999, the Court ordered that Civil No. 5:99-CV-304-C be consolidated with Civil No. 5:99-CV-232-C and gave the Government permission to file a supplemental response. No supplemental answer was filed.

On November 17, 1998, Movant was named in a single count indictment charging him with illegal re-entry after deportation in violation of 8 U.S.C. § 1326. He pleaded guilty to the indictment and on March 15, 1999, he was sentenced to 57 months' incarceration, three (3) years' supervised release, and a $100.00 mandatory special assessment. Movant did not file an appeal.

In his motion, Movant alleges that his counsel was constitutionally ineffective because he advised Movant that he would receive a 21-month sentence "at the most" and Movant would not have pleaded guilty if he had known that he would receive a 57-month sentence. Movant also complains that he never received a copy of the Presentence Investigation Report and the interpreter spoke so fast that he was confused when he was pleading guilty and being sentenced. Movant then states, however, that he does not wish to withdraw his plea. In his second motion, Movant only requests that the Court grant him a downward departure so that he can return to his family.

There are four grounds upon which a federal prisoner may move to have his sentence vacated or set aside under § 2255:

(1) The sentence was imposed in violation of the Constitution or laws of the United States;

(2) The court was without jurisdiction to impose the sentence;

(3) The sentence exceeds the statutory maximum sentence; or

(4) The sentence is "otherwise subject to collateral attack."

United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Relief under § 2255 is thus 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." United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995) (quoting United States v. Acklen, 47 F.3d 739, 741 (5th Cir. 1995)). "Pursuant to the Supreme Court's recent decision in Bousley v. United States, [ 523 U.S. 614, 621-623 (1998)], a [movant] can successfully petition for § 2255 relief after a guilty plea only if: (1) the plea was not entered voluntarily or intelligently, . . . or (2) the petitioner establishes that he is actually innocent of the underlying crime." United States v. Sanders, 157 F.3d 302, 305 (5th Cir. 1998) (internal citations omitted).

Movant does not allege or demonstrate that he is actually innocent of the offense of illegal re-entry, but he does argue somewhat speciously that his plea of guilty was involuntary and unintelligent.

The voluntariness and intelligence of a guilty plea may not be attacked on collateral review unless the movant first challenged it on direct appeal. Bousley v. United States, 523 U.S. at 620; United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997). When a movant procedurally defaults a challenge to the voluntariness and intelligence of his guilty plea by failing to raise it on direct review, he may challenge it in a motion under 28 U.S.C. § 2255 only if he can demonstrate "cause and prejudice" or "actual innocence." Bousley v. United States, 523 U.S. at 621-22. Claims of ineffective assistance will satisfy the cause-and-prejudice requirement and are ordinarily raised for the first time on collateral review. United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996).

To establish a claim for ineffective assistance of counsel, a movant must demonstrate that (1) his counsel's performance was objectively deficient and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Seyfert, 67 F.3d 544, 547 (5th Cir. 1995). This standard applies regardless of whether a movant was convicted following a trial or a plea of guilty. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). In the context of a guilty plea, however, a movant must demonstrate that his attorney actually erred and that, but for the error, petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 58-59; Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).

To show that a counsel's performance is deficient, a movant must demonstrate that his attorney's performance was below the constitutional minimum; that is, that his attorney's performance was unreasonable in light of all the circumstances. United States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998). See United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994) (holding that an attorney's performance "is measured against an objective standard of reasonableness"). To render effective assistance to a defendant pleading guilty, an attorney must insure that his client knowingly and voluntarily agrees to plead guilty. Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995). Because of the inherent difficulties in determining whether an attorney has performed in a reasonably objective maimer, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Haese, 162 F.3d at 364 (quoting Strickland v. Washington, 466 U.S. at 689).

To show that he has been prejudiced by counsel's deficient performance, a defendant who has pleaded guilty must demonstrate that, but for counsel's errors, he would not have pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59; Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). The movant must "affirmatively prove, and not merely allege, prejudice." Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Simply alleging prejudice, therefore, will not suffice.

It is not necessary to hold an evidentiary hearing on a claim of ineffective assistance if a court can conclude on the record as a matter of law that a movant has failed to establish one or both of the Strickland elements. United States v Walker, 68 F.3d at 934. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (holding that a movant is entitled to an evidentiary hearing on claims of ineffective assistance and a coerced guilty plea only "if the existing record proves the likely merit of [his] specific allegations of a promise"). After reviewing the record and all pleadings, the Court is of the opinion that Movant's claims of ineffective assistance of counsel can be decided, as a matter of law, without a hearing.

The failure to demonstrate either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. at 700. Even construing Movant's motion liberally, the Court finds that he has completely failed to allege that, but for his attorney's errors, he would not have pleaded guilty and would have insisted on going to trial. In fact, Movant clearly states that he does not wish to withdraw his plea of guilty and he merely requests a reduction in his sentence. The Fifth Circuit Court of Appeals "has made clear that conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Thus, Movant's claim of ineffective assistance of counsel is defeated by his failure to demonstrate prejudice.

Moreover, a guilty plea is not rendered involuntary "by a defendant's mere subjective understanding that he would receive a lesser sentence," or because "a defendant's misunderstanding [is] based on defense counsel's inaccurate prediction that a lesser sentence would be imposed." Daniel v. Cockrell, ___ F.3d ___, 2002 WL 264270 (5th Cir. Feb. 25, 2002), at 4-5. The record shows that Movant signed the Factual Resume and Plea Agreement on December 29, 1998, and although he contends that he has difficulty understanding English, he does not allege that he did not know or understand what he was signing. In both documents, Movant was advised that the maximum term of imprisonment that could be imposed was twenty (20) years and the maximum fine that could be assessed was $250, 000.00. See Ables v. Scott, 73 F.3d 591, 592-93 n. 2 (5th Cir. 1996) (holding that a plea is knowingly and intelligently entered into if the defendant knows the maximum prison term and fine for the offense charged), In the Plea Agreement, he was specifically admonished that there was "no agreement as to what [the] sentence [would] be." He was advised that the Court would impose the sentence pursuant to the Sentencing Reform Act of 1984 and he would not be allowed to withdraw his sentence if the guideline range was higher than he expected. He also declared that he was pleading guilty "freely and voluntarily"; his plea was not the result of force, threats, or promises apart from those set out in the agreement; and no one had made any promises or representations as to what sentence the Court would impose. Furthermore, Movant was orally advised of his rights and the maximum range of punishment that could be imposed at the guilty plea proceeding on December 31, 1998. Thus, there is no evidence that Movant was misinformed regarding the full range of punishment that could be imposed or that he was promised a definite term of years. See United States v. Garcia, 983 F.2d 625, 629 (5th Cir. 1993) (holding that a defendant's complaint that reliance upon misinformation from his attorney regarding the "likely" period of incarceration was insufficient to support setting aside his plea of guilty where the sentencing court had correctly explained the possible maximum sentence).

This Court notes that an interpreter was used at both the plea and sentencing proceedings. Movant has filed two § 2255 motions with this Court and sent numerous letters and change of address notices to the Court despite his claims that he has only a second-grade education and has difficulty understanding English.

For the reasons stated above, this Court finds that the Motion to Vacate, Set Aside, or Correct Sentence filed by Guadalupe Morales-Solis should be DENIED and dismissed with prejudice.

All relief not expressly granted is denied and any pending motions are denied.

SO ORDERED.