Santana v. U.S.

Full title: LUIS ALBERTO SANTANA, Movant, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jun 7, 2005

No. SA-04-CA-0932-RF (W.D. Tex. Jun. 7, 2005)

Opinion

No. SA-04-CA-0932-RF.

June 7, 2005

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

W. ROYAL FURGESON, District Judge

BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on February 17, 2005 (Docket No. 50). The Magistrate Judge recommended that Movant's Section 2255 motion to vacate sentence be denied. Movant filed his objections to the Memorandum and Recommendation on March 7, 2005. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.

BACKGROUND

On February 6, 2002, Movant was charged in a one-count indictment with possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii) and 846. Without a plea agreement, Movant pled guilty to the indictment which is a total offense level of 27 with a range of punishment under the Sentencing Guidelines of 87-108 months. However, due to his prior conviction in Texas for involuntary manslaughter and his prior nolo contendere plea in Louisana to a controlled substance offense, Movant qualified for career offender status under Section 4B1.1(a) of the Sentencing Guidelines. This raises the range of punishment to 188-235 months. On November 7, 2002, Movant was sentenced to serve 188 months in prison to be followed by a supervised release term of 5 years.

On October 18, 2004, Movant filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Section 2255. After review of Movant's § 2255 Motion, the Government's Response, and Movant's Reply, Magistrate Judge John Primomo recommended that Movant's Motion be denied.

On March 7, 2005, Movant filed his Reply and Objection to the Magistrate Judge's Memorandum and Recommendation (Docket No. 52) and raised three objections: (1) the District Court erred in sentencing him as a career offender based on his prior conviction for involuntary manslaughter and his prior nolo contendere plea to possession with intent to distribute a controlled substance; (2) he received ineffective assistance of counsel when his trial and appellate attorneys failed to raise the career offender and Rule 35 issues; and (3) the District Court erred in making the Sentencing Guidelines mandatory after the decisions in Apprendi v. New Jersey ¹ and Blakely v. Washington, ² and such an error violated his Due Process and the Fourteenth Amendment rights.

1 530 U.S. 466, 490 (2000).

2 542 U.S. ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004).

STANDARD OF REVIEW

The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service.³ The Court need not consider objections that are frivolous, conclusive, or general in nature.⁴ If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law.⁵ In the instant case, Plaintiff timely filed specific objections to the Magistrate Judge's Memorandum and Recommendation, thus warranting de novo review by the Court.

3 28 U.S.C. § 636(b)(1).

4 Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).

5 See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

ANALYSIS

I. District Court Sentencing Error

The Magistrate Judge has offered strong justifications to deny Movant's first claim that he was incorrectly sentenced. First, the claim is not cognizable in a Section 2255 proceeding because it is neither a constitutional nor a jurisdictional issue.⁶ Section 2255 only provides relief when the movant can establish that: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by the law; or (4) the sentence is otherwise subject to collateral attack.⁷ Movant has not attempted to establish any of these justifications. Instead, Movant argues that he falls within an `actual innocence' exception to the `cause and prejudice' requirements set forth in United States v. Frady. ⁸ When the petitioner fails to raise an issue on direct appeal, collateral review is barred unless the petitioner can demonstrate cause and prejudice as a result of the alleged violation.⁹ If the cause and prejudice standard cannot be met, Section 2255 can only provide relief if the failure to consider the claim would result in a fundamental miscarriage of justice.¹⁰ However, a movant may obtain a hearing on a procedurally defaulted claim if he demonstrates his actual innocence of the underlying offense, even if he cannot satisfy the general cause and prejudice requirements.¹¹ Movant's argument is based on an assumption that this exception extends to noncapital sentencing enhancement cases.¹²

6 United States v. Cervantes, 132 F.3d 1106, 1009 (5th Cir. 1998); United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996).

7 28 U.S.C. Section 2255.

8 456 U.S. 152, 167-68 (1981).

9 Wainwright v. Sykes, 433 U.S. 72 (1977).

10 Cervantes, 132 F.3d at 1009.

11 Murray v. Carrier, 477 U.S. 478, 496 (1986).

12 Movant cites Smith v. Murray, 477 U.S. 527, 537 (1986) and Dugger v. Adams, 489 U.S. 401, 410-12 (1989) for this proposition.

Movant argues that he does not have to meet the cause and actual prejudice requirements set forth in United States v. Frady ¹³ based on the holding in United States v. Corsentino. ¹⁴ In Corsentino, the Second Circuit granted the movant's Section 2255 motion without imposing the Frady requirements because the government violated its promise to the movant entering a guilty plea pursuant to a plea agreement that it would take no position at sentencing. However, in the case at bar, Movant is unable to meet the requirement that he prove his actual innocence of the underlying offense in order to fall into the actual innocence exception because he pled guilty without a plea agreement. Therefore, Movant does not qualify for the actual innocence exception and must prove the general cause and prejudice requirements in order to obtain a hearing on his procedurally defaulted claim. Since Movant cannot adduce such proof, no hearing is justified.

13 456 U.S. 152, 167-68.

14 685 F.2d 48, 51 (2d Cir. 1982).

II. Ineffective Assistance of Counsel

With regard to Movant's second claim that he received ineffective assistance of counsel when his trial and appellate attorneys failed to raise the career offender and Rule 35 issues, the Court adopts the Magistrate Judge's recommendation that his argument be rejected. In Strickland v. Washington, ¹⁵ the United States Supreme Court set forth the constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel as guaranteed by the Sixth Amendment. As noted by the Magistrate Judge, the U.S. Supreme Court held:

15 466 U.S. 668 (1984).

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, 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. Second, 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.¹⁶

16 466 U.S. at 687.

Evaluated under the proper standard of "reasonably effective assistance," the Court upholds the Magistrate Judge's finding that counsel's representation did not fall below an objective standard of reasonableness or prejudice the Movant for three reasons.¹⁷ First, the record reflects that Movant's counsel objected to the use of his prior Louisana controlled substance no contest plea for the purposes of applying the career offender provision. The record shows he made an objection on the grounds that he had not yet been sentenced in Louisana as of the date of his sentencing in this case.¹⁸ However, trial error did not occur because the plain language of Section 4B1.2(c) requires that a conviction be considered a qualifying predicate offense effective from the date that a nolo contendere plea is entered.

17 Ibid.

18 Transcript of Sentencing Hearing, docket no. 42, pp. 4-6.

Second, counsel's failure to object to the use of a conviction of involuntary manslaughter did not constitute ineffective assistance because the Sentencing Guidelines¹⁹ designate it as a "crime of violence."²⁰ In United States v. Fry, the Fifth Circuit rejected the movant's argument that his state court conviction in Texas for involuntary manslaughter was not a "crime of violence" under Section 2K2.1(a)(3) of the Guidelines.²¹ Since manslaughter is a "crime of violence," Movant's trial or appellate counsel did not render ineffective assistance by failing to present this objection.

19 Section 2L1.2. of the Guidelines (2002). The 2002 version governs here because it was the year in which he was sentenced.

20 United States v. Fry, 51 F.3d 543 (5th Cir. 1995).

21 Section 2K2.1(a)(3) of the Guidelines incorporates the Section 4B1.2(a) definition of a "crime of violence" which specifically states that a "crime of violence" includes manslaughter.

Third, the appellate attorney did not render ineffective assistance by failing to raise a Bellazerius claim. In United States v. Bellazerius, ²² the Fifth Circuit held that the Sentencing Commission exceeded its authority in including drug conspiracy as an offense which triggered the career offender enhancement provision. However, Bellazerius does not apply here since Movant was not qualified for career offender status with a conspiracy conviction.

22 24 F.3d 698, 700-02 (5th Cir. 1994).

III. Apprendi and Blakely

The Magistrate Judge's Memorandum and Recommendation provides strong reasons for not applying the rule set forth in Apprendi ²³ and Blakely. ²⁴ In Apprendi, the Supreme Court held that, other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be alleged, submitted to a jury, and proved beyond a reasonable doubt.²⁵ The "statutory maximum" was articulated in Blakely to mean the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.²⁶ In United States v. Booker, the Supreme Court applied the rule in Blakely to federal Sentencing Guidelines and found unconstitutional the provision of the federal sentencing statute that makes Guidelines mandatory, 18 U.S.C.A. Section 3553(b)(1).²⁷ However, Booker also specifically stated that its holding only applied to cases on direct review, not cases on collateral review.²⁸ In addition, United States v. McCoy, on which the Movant relies, holds that Appendi is not retroactively applicable to cases that had already gone through the direct appeal process by the time Apprendi was released. Therefore, where the case has finished the direct appeal process prior to the issuing of the Apprendi decision,²⁹ such as the case at bar, the penalty for the crime can exceed the statutory maximum without a jury authorizing an increase in the maximum prison sentence.³⁰

23 530 U.S. at 490.

24 124 S.Ct. at 2537.

25 Apprendi, 530 U.S. at 490.

26 125 S.Ct. at 2537.

27 543 U.S. ___, 125 S.Ct. 738, 756, L. Ed.2d (2005).

28 Ibid.

29 The decision was issued June 26, 2000.

30 Green v. United States, 2005 WL 237294 (2nd Cir. 2005); McReynolds v. United States, 2005 WL 237642 (7th Cir. 2005); In re Anderson, 2005 WL 123923 (11th Cir. 2005); United States v. Leonard, 2005 WL 139183 (10th Cir. 2005).

CONCLUSION

Accordingly, the Court ORDERS that the Memorandum and Recommendation be ADOPTED IN ITS ENTIRETY.

FINAL JUDGMENT

On this day the Court entered an order adopting the Memorandum and Recommendation of the United States Magistrate Judge and dismissing Plaintiff's Complaint. The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.

It is ORDERED that the Memorandum and Recommendation of the Magistrate Judge be ADOPTED IN ITS ENTIRETY (Docket No. 50).

It is ORDERED that all of Plaintiff's claims be DISMISSED WITH PREJUDICE.

It is ORDERED that each party bear its own costs.