Opinion
EP-05-CA-0165-DB, EP-03-CR-2306-DB.
July 20, 2005
Before the Court is Petitioner Arturo Aguirre-Lara's ("Aguirre") Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate"), filed on May 2, 2005, pursuant to 28 U.S.C. § 2255. The Government filed a Response to Aguirre's Motion to Vacate on July 18, 2005. To date, Aguirre had not filed a Reply. For the reasons discussed below, the Court concludes that Aguirre is entitled to relief on his claim that counsel rendered ineffective assistance by failing to file a Notice of Appeal on his behalf. The Court will accordingly grant Aguirre's Motion to Vacate in part, dismiss his remaining claims without prejudice, and reinstate the judgment so that he may file a timely Notice of Appeal. I. FACTUAL AND PROCEDURAL HISTORY A. Criminal cause no. EP-03-CR-2306-DB
On December 17, 2003, the Grand Jury sitting in El Paso, Texas, returned a one-count Indictment against Aguirre, charging him with Illegal Re-entry, in violation of 8 U.S.C. § 1326. With the Indictment, the Government filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), based on Aguirre's prior aggravated felony conviction. On February 19, 2004, Aguirre pleaded guilty to the Indictment and the Court referred his case to Probation for the preparation of a Presentence Report ("PSR"). The Court entered Final Judgment on May 25, 2004, sentencing Aguirre to a 37-month term of imprisonment and 3-year term of non-reporting supervised release. The Court additionally ordered Aguirre to pay a $100 special assessment. Aguirre did not file a Notice of Appeal.
B. Aguirre's Motion to Vacate
Aguirre raises three claims in his Motion to Vacate. First, Aguirre alleges that the Court violated the Supreme Court's holding in Apprendi v. New Jersey, 523 U.S. 224 (2000), when it used his prior aggravated felony conviction to enhance his base offense level by sixteen levels (Ground One). Second, Aguirre contends that he is entitled to resentencing under United v. Booker, 125 S. Ct. 738 (2005) (Ground Two). Third, Aguirrre asserts that his counsel, Assistant Federal Public Defender Selena N. Solis ("Solis"), was ineffective for failing to file a Notice of Appeal on his behalf (Ground Three). He attaches a letter from Solis acknowledging that Aguirre asked her to file a Notice of Appeal and apologizing for having failed to do so. Aguirre asks this Court to restore his right to appeal.
C. The Government's Response
The Government argues that Grounds One and Two of Aguirre's Motion to Vacate are without merit. Regarding Ground Three, the Government submits an affidavit from Solis in which she again acknowledges the oversight on her part regarding Aguirre's appeal. The Government therefore concedes that Aguirre may be entitled to relief on this point and indicates that it will accede to the Court's determination on the issue.
III. LEGAL STANDARD A. 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 (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).
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.
B. Ineffective Assistance of Counsel
The Supreme Court established the legal principles governing ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court reiterated that:
An ineffective assistance of counsel claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms."
Wiggins, 539 U.S. at 521 (internal citations omitted).
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." In the context of guilty pleas, the "prejudice" analysis focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. "In other words, in order to satisfy the 'prejudice' requirement, the defendant must show 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."
Strickland, 466 U.S. at 691-92.
Strickland, 466 U.S. at 692.
Hill v. Lockhart, 474 U.S. 52, 58-9 (1985).
Id.
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. C. Ineffective assistance for failure to file a notice of appeal
Strickland, 466 U.S. at 700; Green, 116 F.3d at 11 22; 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).
The Supreme Court held in Roe v. Flores-Ortega that the Strickland test for ineffective assistance of counsel applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. It explained:
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.
Id. at 480.
It emphasized that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Moreover, it instructed, to demonstrate prejudice, a defendant is not required to identify specific issues or show the likelihood of success on the merits if counsel's deficient performance deprived him of the appellate proceeding altogether.
Although showing nonfrivolous grounds for appeal may give weight to the contention that the defendant would have appealed, a defendant's inability to specify the points he would raise were his right to appeal reinstated will not foreclose the possibility that he can satisfy the prejudice requirement where there are other substantial reasons to believe that he would have appealed. We . . . conclude . . . that it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal. Rather, we require the defendant to demonstrate that, but for counsel's deficient conduct, he would have appealed.
See id. at 477.
See id. at 482-83.
See id. at 486 (internal citations omitted) (emphasis in original).
To prevail on his claim of ineffective assistance, therefore, Aguirre must show that: (1) he expressly asked Solis to appeal or reasonably demonstrated that he wished to appeal; (2) he relied on Solis to file an appeal; (3) no appeal was filed; and (4) but for Solis' deficient performance, Aguirre would have appealed.
IV. DISCUSSION
Solis' affidavit leaves little doubt that Aguirre expressly asked her to file a Notice of Appeal on his behalf and relied on her to file the necessary paperwork. It is also clear that Solis, an extremely busy member of the overtaxed Federal Public Defender's Office, inadvertently failed to do so. Although Aguirre does not explicitly say that he would have appealed, but for Solis' failure oversight, the Court finds that Aguirre's post-judgment inquiries regarding the status of his appeal sufficiently indicate that he would have prosecuted an appeal but for Solis' mistake. The Court therefore concludes that Aguirre has carried his burden under Strickland and Flores-Ortega and is thus entitled to relief.
V. CONCLUSION
For the reasons discussed above, the Court will grant Aguirre's Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255 on the grounds that counsel rendered ineffective assistance of counsel by failing to file a Notice of Appeal. The Court will dismiss his remaining two claims without prejudice and reinstate his judgment of conviction and sentence so that he may file a timely Notice of Appeal. Accordingly,
1. Petitioner Arturo Aguirre-Lara's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, filed on May 2, 2005, is GRANTED with respect to his claim that counsel rendered ineffective assistance by failing to file a Notice of Appeal (Ground Three).
2. Petitioner Arturo Aguirre-Lara's remaining claims (Grounds One and Two) are DISMISSED WITHOUT PREJUDICE.
3. The judgement in criminal cause no. EP-03-CR-2306-DB is hereby REINSTATED and Petitioner Arturo Aguirre-Lara shall have up to and including ____________________, 2005 to file a timely Notice of Appeal.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order granting relief on Ground Three of Petitioner Arturo Aguirre-Lara's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on May 2, 2005 ( i.e., his claim that counsel rendered ineffective assistance by failing to file a Notice of Appeal). The Court dismissed Aguirre-Lara's remaining two claims without prejudice. The Court then reinstated Aguirre-Lara's judgment of conviction and sentence, thus re-starting the appellate timetable. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly,
IT IS ORDERED that Petitioner Arturo Aguirre-Lara's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, filed on May 2, 2005, is GRANTED with respect to his claim that counsel rendered ineffective assistance by failing to file a Notice of Appeal.
IT IS FURTHER ORDERED that Petitioner Arturo Aguirre-Lara's remaining two claims are DISMISSED WITHOUT PREJUDICE pending the outcome of his direct appeal.
IT IS ALSO FURTHER ORDERED that the judgment in criminal cause EP-03-CR2-306-DB is REINSTATED to allow Petitioner Arturo Aguirre-Lara to file a timely Notice of Appeal.
IT IS FINALLY ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.
The Clerk shall close this case.