Opinion
1:23-CV-954-RP 1:21-CR-146-RP
07-10-2024
UNITED STATES OF AMERICA, Plaintiff v. DAVID OLMOS, Defendant
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
Before the Court is David Olmos's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, Dkt. 68. The undersigned submits this Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas. The undersigned recommends denying Olmos's motion.
I. BACKGROUND
Olmos participated in a series of robberies of gas stations in Austin, Texas, between April and May 2021 using a Sig Sauer nine-millimeter pistol. Dkt. 1, at 14. He also participated in a carjacking and “took ... a GMC Sierra truck” by using “force, violence, and intimidation, with the intent to cause death and serious bodily harm” against the victim. Id. On August 3, 2021, Olmos was charged in a nine-count Indictment with:
Count One: Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1)
Count Two: Interference with Commerce by Threats of Violence, in violation of 18 U.S.C. § 1951
Count Three: Use of a Firearm in Furtherance of Crime of Violence: Brandishing, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
Count Four: Interference with Commerce by Threats or Violence, in violation of 18 U.S.C. § 1951
Count Five: Use of a Firearm in Furtherance of Crime of Violence: Brandishing, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
Count Six: Interference with Commerce by Threats or Violence, in violation of 18 U.S.C. § 1951
Count Seven: Interference with Commerce by Threats or Violence, in violation of 18 U.S.C. § 1951
Count Eight: Carjacking, in violation of 18 U.S.C. § 2119
Count Nine: Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1)Id. at 1-6.
Pursuant to a plea agreement, Olmos pleaded guilty to Counts Two, Three, and Five of the Indictment before a United States Magistrate Judge, with the Government agreeing to dismiss the remaining counts. Dkt. 57, at 9. Olmos also agreed to waive his “appellate rights and ... collateral attack rights,” allowing for “very limited exceptions,” including: “ineffective assistance of counsel, prosecutorial misconduct, or if the sentence [ ] received is above the statutory maximum.” Id. at 12. Olmos orally stated that he read his plea agreement, understood it, discussed it with his attorney, and agreed to be bound by it. Id. at 10. He also orally stated that he understood the appellate and collateral-attack waivers, discussed them with his attorney, and agreed to them. Id. at 12-13. The government agreed to “make the sentencing recommendation within the sentencing guidelines range as determined by the Court,” while recognizing that the Court could “go above or below that recommendation.” Id. at 9-14. On January 31, 2022, the Court accepted Olmos's guilty plea. Dkt. 42, at 1.
On June 13, 2022, the Court committed Olmos “to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of 51 months as to [Count Two]; 84 months as to [Count Three]; [and] 84 months as to [Count Five],” with “the terms to run consecutive to each other for a total of 219 months.” Dkt. 51, at 2. The Court recommended that “[Olmos] be placed in a federal facility as close to FCI Three Rivers area as possible for family visitation.” Id. The Court also recommended that Olmos participate in “the 500 Hour Residential Drug Abuse Program,” or “the most intensive drug treatment program available during the period of confinement.” Id.
On August 10, 2023, Olmos filed a “Motion for Appeal of Conviction,” alleging ineffective assistance of counsel and other constitutional violations. Dkt. 63, at 1-3. Then, the Court issued an Order & Advisory, ordering Olmos's original motion to be construed as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Dkt. 65, at 2. Olmos was ordered to: “(1) withdraw his [original] motion, by filing a Notice of Withdrawal or (2) amend his instant filing so that it contain[ed] all the § 2255 claims he believe[d] he [had].” Id. Olmos timely filed an amended Motion to Vacate under 28 U.S.C. § 2255 on August 30, 2023. Dkt. 68, at 1. The Government filed a response in opposition to Olmos's Motion to Vacate on December 14, 2023. Dkt. 72.
II. STANDARD OF REVIEW
Under § 2255, four general grounds exist upon which a defendant may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the District Court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under § 2255 is extremely limited: “A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude ... and may not raise an issue for the first time on collateral review without showing both ‘cause' for his procedural default, and ‘actual prejudice' resulting from the error.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, “result in a complete miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).
Generally, a § 2255 motion must be filed within one year of the latest of four events, two of which are the date the judgment becomes final, see 28 U.S.C. § 2255(f)(1), and “the date on which the right asserted was initially recognized by the Supreme Court,” if that right applies retroactively, see 28 U.S.C. § 2255(f)(3).
III. ANALYSIS
Olmos asserts seven bases of relief in his petition. Dkt. 68. In Ground One, he cites the “Article VI [Supremacy Clause]” of the United States Constitution, arguing that alleged “errors” regarding: (1) “[his] bail”; and (2) the “amount of time until [his] indictment ... and between [his] indictment and the commencement of [his] trial,” constitute violations of the Supremacy Clause. Id. at 1-3. In Ground Two, he claims he was denied his “right to a public and speedy trial.” Id. at 1. In Ground Three, he claims he was denied his right to effective counsel. Id. at 2. In Ground Four, he cites the “Article IV [Protections and Immunities Clause]” of the United States Constitution, arguing that the alleged “excessive bail” and denial of his right to “a public and speedy trial” constitute violations of the Protections and Immunities Clause. Id. at 2-4. In Ground Five, he cites the “United States Bail Reform Act of 1984,” arguing that the Court has violated this statute, therefore violating the constitution. Id. at 2. In Ground Six, he references “Greg Abbott's Law”as the reason he was allegedly denied his right to reasonable bail and a speedy trial. Id. at 4. In Ground Seven, he alleges violations of Chapters 39.02-.04 of the Texas Penal Code committed “by the judge and the D.A.,” arguing that his sentence must be vacated immediately. Id.
Olmos does not specify which statute he refers to as “Greg Abbott's Law”; therefore, it cannot be properly identified. Dkt. 68.
A. Grounds One, Two, Four, Five, Six and Seven are Barred by the Waiver of Appellate and Collateral-Attack Rights.
Grounds One, Two, Four, and Five constitute excessive-bail and speedy-trial claims. Such claims are barred by the collateral-attack waiver in Olmos's plea agreement and should be dismissed. Grounds Six and Seven, concerning “Greg Abbott's law” and violations of the Texas Penal Code constitute state-law claims that are not cognizable under 28 U.S.C. § 2255 and should also be dismissed. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating “federal habeas corpus relief does not lie for errors of state law”).
As to Grounds One, Two, Four, and Five concerning claims of excessive bail and violations of Olmos's right to a speedy trial, Olmos knowingly and voluntarily waived his right to bring these claims. The Fifth Circuit has consistently held that a “criminal defendant may waive his statutory right to appeal in a valid plea agreement.” United States v. Pleitez, 876 F.3d 150, 156 (5th Cir. 2017); see United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (holding appellate waivers are enforceable if invoked by the United States). Additionally, an “appeal waiver bars an appeal if the waiver (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the agreement.” United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014); see United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (holding that an appeal waiver met the two-prong requirement to bar an appeal). Here, Olmos's signed plea agreement and sworn statements made during his plea hearing show that he knowingly and voluntarily waived his right to collaterally attack his conviction and sentence on speedy-trial or excessive-bail grounds and acknowledged that he “discuss[ed]” the collateral-attack waiver with his counsel before pleading guilty. Dkt. 57, at 12-13; Dkt. 72-1, at 7-8. Though Olmos retained his right to move for post-conviction relief in a few “very limited exceptions,” such as where asserting claims of “ineffective assistance of counsel,” “prosecutorial misconduct,” or sentencing “above the statutory maximum,” his speedy-trial and excessive-bail claims do not fall within these exceptions. Dkt. 57 at 12. To the extent Olmos's motion is based on Grounds One, Two, Four, and Five, the motion should be dismissed.
B. Ground Three is Meritless and Should be Dismissed.
Although Olmos waived his appellate and collateral-attack rights, he retained his right to claim “ineffective assistance of counsel.” Dkt. 57, at 12. Olmos claims his right to effective assistance of counsel was denied for the following alleged reasons: his attorney (1) did not inform him that his “right to a speedy trial” had been “violated”; (2) did not inform him of his “right to dismiss [his] charges by simply pleading not guilty”;(3) did “not acknowledg[e] [his] right to be free from excessive bail”; (4) “never explained” his plea agreement; (5) “unintelligently coerced” him “into pleading guilty”; and (6) “epitomize[d] inadequate representation.” Dkt. 68, at 4.
Pleading guilty as a criminal defendant does not grant the right to automatically dismiss charges, as Olmos contends.
The Supreme Court has held that for a convicted defendant to adequately plead ineffective assistance of counsel, “two components” are required: (1) “the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment,” and (2) “the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “A defendant can show Strickland prejudice by establishing that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” United States v. Alston, No. 21-30090, 2023 WL 3843071, at *3 (5th Cir. 2023) (per curiam) (cleaned up). “To obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id. (cleaned up).
Here, Olmos fails to adequately plead the required components of his ineffective-assistance-of-counsel claim. Despite his cursory allegation to the contrary, it is apparent that, during Olmos's re-arraignment hearing, he orally affirmed that he reviewed the plea agreement with his attorney and voluntarily signed it. Dkt. 57, at 12-13. Olmos represented that he understood his “constitutional and statutory rights” and still “[chose] to waive them.” Id. at 28. He represented that he understood that pleading guilty would “waive his right to a trial by jury,” as well as additional rights outlined in the waiver and the plea agreement. Id. at 22-23. He represented that he “[pleaded] guilty freely and voluntarily,” that no one “threatened [him] or forced [him] in any manner to plead guilty,” and that he was “satisfied with [his] attorney's representation of [him].” Id. at 8, 27. The Court found that Olmos “understood] the plea agreement ... and agree [d] to be bound by its terms and conditions.” Id. at 28. Though Olmos asserts that his attorney failed to inform him of his rights, his motion's “bare assertions do not overcome [his] sworn statements in open court, which carry a strong presumption of veracity.” Guzman v. United States, No. CIV.A. L-09-74, 2009 WL 3334910, at *3 (S.D. Tex. Oct. 14, 2009); see Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). Further, Olmos has not alleged Strickland prejudice by pleading that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. In sum, Olmos's assertion that his attorney did not inform him of his rights is meritless. Therefore, Olmos's motion on the basis of his claim for ineffective assistance of counsel should be dismissed.
IV. RECOMMENDATION
In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Judge DENY David Olmos's Motion to Vacate, Set Aside, or Correct Sentence, Dkt. 68. The referral in this case is CANCELED.
V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a proceeding under § 2255 “[u]nless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c) (1)(B). Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, effective as amended on February 1, 2010, the District Court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
A certificate of appealability (“COA”) may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a movant's constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the denial of the movant's § 2255 motion on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Accordingly, a certificate of appealability should not be issued.
VI. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).