Opinion
Nos. EP-04-CA-0366-FM, EP-03-CR-1671-FM.
September 28, 2005
MEMORANDUM ORDER AND OPINION DENYING AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Roberto Barrera's ("Barrera") pro se Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Amended Motion to Vacate") [Docket no. 24], filed on October 18, 2005. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") on January 20, 2005. To date, Barrera has not filed a Reply. After due consideration, the Court finds that Barrera has not carried his burden under the applicable test for ineffective assistance of counsel and therefore is not entitled to relief regarding his sole claim in this action. Accordingly, the Court will deny Barrera's claim and dismiss this matter with prejudice. The Court will additionally deny Barrera a Certificate of Appealability. I. FACTUAL AND PROCEDURAL HISTORY A. Criminal Cause No. EP-03-CR-1671-FM
On September 3, 2003, the Grand Jury sitting in El Paso, Texas, returned a one-count Indictment against Barrera, charging him with Illegal Re-entry 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 Barrera' prior felony conviction for conspiracy to smuggle and harbor aliens, in violation of 8 U.S.C. § 1324. Barrera, deciding to forego trial, pleaded guilty to the Indictment on October 17, 2003. The Court accepted the plea the same day and set the matter for sentencing. The Court entered Judgment on January 9, 2004, sentencing Barrera to a 46-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Barrera to pay a $100.00 special assessment. Barrera did not appeal.
B. Barrera's Amended Motion to Vacate
Barrera argues that his attorney, Anthony Ignacio Gonzalez ("Gonzalez") rendered ineffective assistance of counsel at sentencing. Barrera specifically complains that Gonzalez did not object to the Presentence Report's recommendation that Barrera receive a 16-level increase in his Base Offense Level pursuant to U.S.S.G. § 2L1.2(a)(1)(C), due to his prior conviction for alien smuggling. Barrera contends that his alien smuggling conviction should only have increased his total offense level by 8 rather than 16 levels.
II. LEGAL STANDARD A. 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, 102 S. Ct. 1584, 1592 (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).
Further, it is 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. B. 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).
The Supreme Court established the legal principles that govern ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (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, 123 S.Ct. at 2535, 156 L. Ed. 2d at 484 (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, 106 S. Ct. 2464, 2473, 91 L. Ed. 2d 144, 159 (1986); Strickland, 466 U.S. at 687-91, 104 S. Ct. at 2064-2065; 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, 107 S. Ct. 3114, 3123, 97 L. Ed. 2d 638, 654 (1987); Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; 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, 123 S. Ct. at 2536 (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."
Strickland, 466 U.S. at 691-92, 104 S. Ct. at 2066-67.
Strickland, 466 U.S. at 692, 104 S. Ct. 2067.
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, 104 S. Ct. at 2071; 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 Barrera's claim.
III. DISCUSSION
United States Sentencing Guidelines § 2L1.2(b) instructs the district court to increase the Base Offense Level of 8 for the offense of Illegal Re-entry by 16 levels if the defendant was previously deported or unlawfully remained in the United States after a conviction of certain offenses, including alien smuggling:
§ 2L1.2. Unlawfully Entering or Remaining in the United States
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after —
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels[.]
See U.S.S.G. § 2L1.2 (b)(1)(A)(vii).
Barrera does not dispute that he was previously found guilty of alien smuggling, nor does he contend that his alien smuggling conviction occurred after the date of the deportation prosecuted in cause no EP-03-CR1671-FM. There is thus no legal basis for Barrera's claim that the Court misapplied U.S.S.G. § 2L1.2(b)(1)(A)(vii). Gonzalez cannot be said to have performed deficiently by declining to raise a frivolous objection.
Barrera must meet both prongs of the Strickland test for ineffective assistance of counsel to prevail on his claim against Gonzalez. Barrera's failure to meet the first prong of Strickland therefore makes it unnecessary for the Court to consider the prejudice prong. Accordingly, the Court will deny Barrera's claim that Gonzalez rendered ineffective assistance and dismiss this matter with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" 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, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931, 949 (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 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 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, 123 S. Ct. at 1040.
Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (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 the parties' pleading, the Court concludes that jurists of reason would not debate whether Barrera 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 Barrera's claim for relief.
VI. CONCLUSION ORDER
For the reasons discussed above, the Court concludes that Petitioner Roberto Barrera is not entitled to relief regarding the claim he raises in his Amended Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court further finds that Barrera is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Roberto Barrera's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 24], filed on October 18, 2004, is DISMISSED WITH PREJUDICE.
2. Petitioner Roberto Barrera is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.