Opinion
Civil Action No. 1:06cv191.
May 2, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Movant Jose Santana Moreno Resendez, a prisoner currently confined at Federal Correctional Complex in Beaumont, Texas, proceeding pro se, filed this motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Factual Background and Prior Proceedings
On May 20, 2005, pursuant to a written plea agreement, movant pleaded guilty to the charge of illegal entry after deportation, in violation of 8 U.S.C. § 1326. On August 19, 2005, a judgment was entered against movant, sentencing movant to a term of 41 months imprisonment, to be followed by a two year term of supervised release. Movant did not appeal his conviction or sentence.
The Motion to Vacate
Movant brings the present motion to vacate alleging that his plea of guilty was made not intelligently made and is therefore invalid. Movant claims he was not made aware of collateral consequences of his sentence. Movant states that he is not eligible to serve his sentence in a minimum facility nor is he eligible to spend a portion of the last 10% of his sentence in a halfway house or other community program because of his status as a deportable alien.Analysis
There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 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; and (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 112 S.Ct. 2319 (1992).
"Challenging a conviction and sentence with a section 2255 motion is 'fundamentally different from a direct appeal.'" United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (quoting United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992)). "After conviction and exhaustion or waiver of any right to appeal, 'we are entitled to presume that [the defendant] stands fairly and finally convicted.'" United States v. Shaid, 937 F.2d 228, 231-232 (5th Cir. 1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992) (en banc decision) (quoting United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)); United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). "Thus, on collateral attack, a defendant is limited to alleging errors of a 'constitutional or jurisdictional magnitude.'" Samuels, 59 F.3d at 528 (quoting Shaid, 937 F.2d at 232). Relief under § 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, if condoned, would result in a complete miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000). Nonconstitutional claims that could have been raised on direct appeal may not be asserted in a 28 U.S.C. § 2255 proceeding. Id. Effect of Guilty Plea
A voluntary guilty plea waives all nonjurisdictional defects in the proceedings against the defendant. "This includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea[.]" Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (internal and concluding citations omitted), cert. denied, 466 U.S. 906 (1984). To prevail on an ineffective assistance of counsel claim, the movant must show that his counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068 (1984).
In the context of a guilty plea, a 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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985). The court must determine that the plea represents "a voluntary choice among the alternative courses of actions open to the defendant." Id. 474 U.S. at 56, 106 S.Ct. at 369. Additionally, the Supreme Court has determined that "the representations of the defendant . . . [at a plea proceeding] as well as any findings made by the judge accepting the plea constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629 (1977). "If a defendant understands the charges against him, understands the consequences of his guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review." Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir.) (en banc), cert. denied, 502 U.S. 835, 112 S.Ct. 116 (1991).
In this case, movant does not dispute that his guilty plea was entered in compliance with Federal Rule of Criminal Procedure 11. Instead, he contends the plea was involuntary because he was unaware that his conviction might result in the collateral consequences of not being eligible to serve his sentence in a minimum facility or being eligible to spend a portion of the last 10% of his sentence in a halfway house or other community program because of his status as a deportable alien.
As a general proposition, the voluntariness of a guilty plea is not abridged by any misunderstanding or unfamiliarity with the collateral consequences of his plea. A trial court is not required to admonish a defendant regarding the collateral consequences of his guilty plea. See e.g., James v. Cain, 56 F.3d 662, 666 (5th Cir. 1996) (constitution does not require furnishing defendant with information about parole eligibility); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir. 1985) (no due process right to be informed of collateral consequences of criminal conviction); George v. Black, 732 F.2d 108, 110-11 (8th Cir. 1984) (trial court not required to admonish defendant of mandatory mental health commitment proceeding after release from prison). A petitioner can voluntarily entered a guilty plea whether or not he has been informed of the "collateral" consequences of his plea. United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir. 1990). The Fifth Circuit has held that the effect of a defendant's guilty plea on good time credits qualifies as a collateral consequence. Johnson v. Dees, 581 F.2d 1166, 1167 (5th Cir. 1978). Courts consider a petitioner to be "fully aware of his plea consequences" if he understands the length of time he might possibly receive. Spinelli v. Collins, 992 F.2d 559, 561 (5th Cir. 1993). Accordingly, movant's ground for relief should be denied.
Recommendation
Movant's motion to vacate, set aside or correct sentence should be denied.Objections
Objections must be (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED.R.CIV.P 6(a), 6(b) and 72(b).
A party's failure to object bars that party from (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n. Hello This is a Test, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).