Opinion
EP-05-CA-0204-DB, EP-03-CR-1123-DB.
August 4, 2005
MEMORANDUM ORDER AND OPINION DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Asbiel Aragon-Rangels' ("Aragon") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 31], filed on May 27, 2005. After review, the Court finds that Aragon is clearly not entitled to relief regarding his claims. Accordingly, it concludes that Aragon's Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Aragon a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause no. EP-03-CR-1123-DB
On June 4, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Aragon, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), due to Aragon's prior aggravated felony conviction. Aragon, deciding to forego trial, pleaded guilty to the Indictment on July 8, 2004. The Court accepted the plea on July 27, 2004 and set the matter for sentencing. The Court entered Judgment on September 28, 2004, sentencing Aragon to a 40-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Aragon to pay a $100 special assessment. Aragon did not appeal.
B. Aragon's Motion to Vacate pursuant to 28 U.S.C. § 2255
The Court has read Aragon's Motion to Vacate liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands him to raise the following claims. First, Aragon alleges that he received ineffective assistance of counsel (Claim One). He attaches a document to his form Motion to Vacate, entitled "Petition under Title 28 USC § 2255 to Vacate, Correct and Resentence." Therein, he alleges that his attorney, Assistant Federal Public Defender John P. Calhoun ("Calhoun"), rendered ineffective assistance because he did not object to findings in the Presentence Report ("PSR"), even though he knew the information reported there was incorrect. Aragon also faults Calhoun for failing to recommend that his client pursue a direct appeal challenging the sentence imposed by this Court and for failing to file a timely Notice of Appeal. Second, Aragon avers that his sentence is unconstitutional under the Supreme Court's holding in United States v. Booker, ___ U.S. ___ 125 S.Ct. 738 (Jan. 12, 2005) (" Booker"), presumably because he received a sentence exceeding the 24-month statutory maximum penalty for the offense charged in the Indictment (Claim Two).
II. LEGAL STANDARD — 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).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. See Withrow v. Williams, 507 U.S. 680 (1993). It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. ARAGON'S INEFFECTIVE ASSISTANCE CLAIM A. Legal standard — ineffective assistance of counsel claims, in general
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that 'the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id.
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent ten dencies); 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 defend ant 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 un dertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
With these principles in mind, the Court turns to the merits of Aragon's claim for relief.
B. Discussion
Insofar as Aragon faults Calhoun for failing to file objections to incorrect information contained in the PSR, the Court finds that his allegations are conclusory and insufficient to state a claim for constitutionally ineffective assistance of counsel. Aragon fails to identify what information was erroneous, and what difference, if any, the correct information would have made to his sentence.
To the extent Aragon complains that Calhoun did not recommend that he prosecute an appeal or file a Notice of Appeal on his behalf, the Court finds that Aragon has also failed to state a claim for constitutionally ineffective assistance of counsel. The Strickland test for ineffective assistance of counsel applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal.
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.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Id. at 480.
"A lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." 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 482-3.
See id. at 486 (internal citations omitted) (emphasis in original).
After considering the standard set forth above, the Court concludes that Aragon has failed to satisfy either prong of the Strickland test for ineffective assistance of counsel. First, Aragon has not alleged that Calhoun neglected to consult him regarding an appeal; rather, Aragon appears to complain that Calhoun did so, but advised him against appealing. Further, even if Calhoun did not discuss Aragon about an appeal, Aragon has failed to allege the existence of any circumstances suggesting that he, specifically, or a reasonable defendant, in general, would have wanted to appeal. Moreover, to the extent Calhoun spoke with his client about an appeal and recommended against pursuing such relief, Aragon has failed to show that any such advice offered by Calhoun was professionally unreasonable under the circumstances. Lastly, assuming that such advice, if any, was professionally unreasonable, Aragon has failed to show prejudice, as he has not even alleged that he would have filed a timely Notice of Appeal, but for Calhoun's purportedly deficient performance. Accordingly, the Court concludes that Aragon is not entitled to relief regarding Claim One.
IV. BOOKER'S NON-RETROACTIVITY
The Fifth Circuit Court of Appeals has recently joined the other circuit courts of appeal to consider the matter and held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. That is, judgments that became final before January 12, 2005 may not claim relief pursuant to Booker.
See Padilla v. United States, No. 04-50567, ___ F.3d ___, ___, 2005 U.S. App. LEXIS 13580, at *7 (5th Cir. July 8, 2005) (per curiam) (stating that Booker's holding does not apply retroactively to cases on collateral review); see also Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, at *6, 2005 U.S. App. LEXIS 8699, at *19 (3rd Cir. May 17, 2005) (holding that Booker does not apply retroactively); Guzman v. United States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and therefore does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Here, because Aragon did not appeal, Judgment became final on October 9, 2004, ten days after entry and approximately three months before Booker's release. As Booker therefore provides Aragon with no legal basis for relief, the Court concludes that it should dismiss Claim Two with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to tho se issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253 (c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (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 Aragon's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Asbiel Aragon-Rangel's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Asbiel Aragon-Rangel's Motion to Vacate, Set Aside, or Correct Sentence, filed on May 27, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Asbiel Aragon-Rangel 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 Asbiel Aragon-Rangel's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on May 27, 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 Asbiel Aragon-Rangel's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS ALSO FURTHER ORDERED that Petitioner Asbiel Aragon-Rangel is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.