Opinion
Case No. C1-02-51, Case No. A1-03-136
March 22, 2004
ORDER DISMISSING DEFENDANT'S SECTION 2255 MOTION
Summary:
An inmate filed a motion under 28 U.S.C. § 2255, asserting that defense counsel was ineffective for failing to object to the offense level calculation and for failing to request that the sentence imposed run concurrent with an 8-month sentence in an earlier state case. The Court denied the motion, finding that the inmate had expressly waived his right to file a Section 2255 motion and that the inmate's assertions regarding ineffective assistance of counsel lacked merit.
Before the Court is Petitioner Efran Cortez-Rayas's pro se Motion under 28 U.S.C. § 2255 to Vacate or Correct Sentence. For the reasons stated below, the motion is dismissed.
I. BACKGROUND
On January 8, 2003, the defendant, Efran Cortez-Rayas pled guilty pursuant to a Plea Agreement to a conspiracy count to distribute and possess with intent to distribute over 500 grams of a mixture or substance containing methamphetamine as well as cocaine and marijuana. Cortez-Rayas acknowledged he was involved in transporting approximately 1.7 pounds of methamphetamine, one pound of cocaine, and 8 pounds of marijuana from Washington to North Dakota. See Plea Agreement 6(b). In the Plea Agreement, the parties stipulated that Cortez-Rayas's sentence would be based on 775 grams of methamphetamine, 476 grams of cocaine, and 3.5 kilograms of marijuana. Plea Agreement, 6(f). The parties also stipulated that Cortez-Rayas was a career offender under USSG §§ 4B1.1 and 4B1.2 because he had prior convictions for drug trafficking, i.e., possession with intent to deliver cocaine, and a crime of violence in the State of Washington. Under the Sentencing Guidelines, this resulted in an offense level of 37. See Plea Agreement, 16.
A Presentence Investigation Report initially set forth an offense level of 32 on account of the drug quantities involved. However, the probation officer determined that Cortez-Rayas was a career offender under USSG § 4B.1, as agreed upon by the parties, because of Cortez-Rayas's prior drug trafficking and escape convictions in Washington.
Cortez-Rayas filed a motion for downward departure prior to his sentencing hearing wherein he asserted that (1) his criminal history was overstated in that he did not have prior felony convictions of either a drug trafficking crime or a crime of violence, and (2) he should receive credit for time spent incarcerated in North Dakota on other unrelated charges.
The Court sentenced Cortez-Rayas on April 11, 2003. The Court denied Cortez-Rayas's motion and determined that he had an adjusted offense level of 34 (after a three-level reduction for acceptance of responsibility) and a Category VI criminal history, which resulted in a Sentencing Guideline range of 262-327 months. Thereafter, the Government filed a motion for downward departure based upon substantial assistance provided by Cortez-Rayas pursuant to USSG § 5K1.1 and recommended a one-third reduction from 262 months which was at the bottom end of the Sentencing Guideline range. This resulted in a recommendation from the Government of 174 months imprisonment. The Court granted the Government's 5K1.1 motion and sentenced Cortez-Rayas to a term of 174 months imprisonment. The Court also ordered the sentence to run concurrent to Cortez-Rayas's earlier sentence for illegal reentry into the United States.
On December 12, 2003, Cortez-Rayas's filed a motion for federal habeas relief and asserted that:
(1) My trial attorney failed to bring to the court's attention the great miscalculation on the base offense level attributed to the conspiracy charge for which I was formally adjudicated in this court. (2) My attorney also failed to advise the court that the 8 months given on case # 01-K-037 [in state court], needed to be ran concurrent with my case of conspiracy because it [arose] from the same course of conduct.See Petitioner's Motion under 28 U.S.C. § 2255 to Vacate or Correct Sentence (Docket No. 1), p. 5. The Government filed a response to the petition on January 21, 2004. Cortez-Rayas filed a reply to the Government's response on March 18, 2004. Cortez-Rayas is currently incarcerated in a federal prison in Texas.
II. LEGAL DISCUSSION
By signing the Plea Agreement, Cortez-Rayas expressly waived his right to file a Section 2255 motion challenging his conviction or sentence.See Plea Agreement, 28 (Case No. C1-02-051, Docket No. 77). Such a waiver is fully enforceable against a defendant if made knowingly and voluntarily. See United States v. Andis, 333 F.3d 886 (8th Cir. 2003); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000); United States v. His Law, 85 F.3d 379 (8th Cir. 1996).
Cortez-Rayas contends that "he received ineffective assistance of counsel during plea negotiations because defense counsel failed to object to the government's use of the two connected/related offenses out of the state of Washington to classify him as a career offender." See Petitioner's [Reply] to Respondent's Response to his Motion Under 28 U.S.C. § 2255.
Although Cortez-Rayas challenges his designation as a "career offender" under the Sentencing Guidelines, he has not asserted that his guilty plea was the product of his counsel's ineffectiveness. Cortez-Rayas never disputed the factual basis for the plea or the amount of drugs for which he was held accountable. There is nothing in the record to demonstrate that Cortez-Rayas's decision to plead guilty was not knowing and voluntary. It is also clear that Cortez-Rayas's plea and the waiver contained in the Plea Agreement was made knowingly and voluntarily.
The record clearly reveals that Cortez-Rayas was aware at the time of his change of plea hearing that his offense level would be 37 based on his status as a career offender. See Plea Agreement, 16; Transcript of Change of Plea Hearing, pp. 7-8. Before accepting the plea, the Court specifically asked Cortez-Rayas whether he had read the Plea Agreement, whether he understood the agreement, and whether he was satisfied with the legal advice and assistance provided by his court appointed attorney. See Transcript of Change of Plea Hearing, pp. 5, 7-8 (Case No. C1-02-051, Docket No. 158) Cortez-Rayas answered all of these questions in the affirmative. The Court also explained to Cortez-Rayas the effect of the waiver as well as the fact that the sentence to be imposed was governed by the Sentencing Guidelines and Cortez-Rayas indicated his understanding. See Transcript of Change of Plea Hearing, pp. 5-8. Cortez-Rayas clearly demonstrated an awareness and understanding of the terms and conditions of the Plea Agreement. As a result, the waiver contained in the Plea Agreement is valid and Cortez-Rayas' contention concerning a lack of knowledge about his status as career offender is devoid of merit.
Nevertheless, even if Cortez-Rayas's waiver had not been entered into knowingly and voluntarily, his motion for federal habeas corpus relief would still fail on the merits. The crux of Corez-Rayas's petition is that he received ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 689 (1984), the United States Supreme Court established a two-pronged test for analyzing ineffective assistance of counsel claims. Under the first prong, a petitioner must show his counsel's conduct was objectively unreasonable. Under the second prong, the petitioner must prove "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." 466 U.S. 668, 694. There is a strong presumption that counsel provided adequate assistance and exercised reasonable professional judgment. Vogt v. United States, 88 F.3d 587, 592 (8th Cir. 1996).
Under the Strickland test, Cortez-Rayas's first burden would be to establish that counsel's representation fell below an objective standard of reasonableness. Second, Cortez-Rayas would have to establish there is a reasonable probability that, but for the incompetence of counsel, the result of the proceedings would have been different. A review of the record demonstrates that Cortez-Rayas cannot meet theStrickland test.
Cortez-Rayas's counsel was not ineffective for any failure on his part to argue that the offense level was incorrectly calculated. Cortez-Rayas acknowledged and agreed the factual basis for his offense as set forth in the Plea Agreement was accurate. Cortez-Rayas agreed his offense involved more than 500 grams of a mixture or substance containing methamphetamine and, for sentencing purposes, his offense involved 775 grams of a mixture containing methamphetamine, 476 grams of cocaine, and 3.5 kilograms of marijuana. See Plea Agreement, 6(e) and (f). Based upon the stipulation of the parties and Cortez-Rayas's prior convictions, the probation officer concluded Cortez-Rayas qualified as a career offender under the Sentencing Guidelines, a conclusion which Cortez-Rayas did not challenge. Given the facts of this case, Cortez-Rayas was facing a maximum sentence of life imprisonment. The career offender provisions contained in USSG § 4B1.1 dictated that Cortez-Rayas's offense level was 37. When adjusted for acceptance of responsibility, the adjusted offense level was 34. Thus, it is clear that Cortez-Rayas's offense level was properly calculated and any contention to the contrary is devoid of merit. Cortez-Rayas's counsel cannot be deemed ineffective for his failure to raise a meritless claim. See Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir. 1993). It should also be noted that, contrary to Cortez-Rayas's assertions, defense counsel did raise the issue of Cortez-Rayas's criminal history in a motion for downward departure.
Cortez-Rayas also contends his counsel was ineffective for failing to advise the Court that the sentence should run concurrent with an 8-month sentence in an earlier state case. However, all indications are that Cortez-Rayas had already served an 8-month state sentence. It appears Cortez-Rayas is referring to an 8-month sentence imposed in April 2001 for False Report to a Law Enforcement Officer in Pierce County, North Dakota. He apparently believed the federal sentence should have been run concurrently since it allegedly arose from the same course of conduct. The Presentence Investigation Report (PSI) ordered by the Court revealed that at the time of sentencing in April 2003, the only sentence Cortez-Rayas was serving was a 46-month federal sentence for illegal re-entry. Consequently, there was no undischarged term of imprisonment in state court which the present sentence could run concurrent with.See United States v. Ramirez, 252 F.3d 516, 519 (1st Cir. 2001). Since this claim lacks merit, counsel was not ineffective for failing to raise the issue. See Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir. 1993).
Further, even if Cortez-Rayas was facing a sentence on a state court charge, there is no requirement the federal sentence be run concurrent. Under USSG § 5G1.3(b), a concurrent sentence is only required if the underlying offense for the undischarged term of imprisonment was used to determine the offense level in the instant case. Clearly, Cortez-Rayas's conviction in state court was not used to determine the offense level in this case.
Cortez-Rayas's Motion under 28 U.S.C. § 2255 to Vacate or Correct Sentence (Case No. C1-02-051, Docket No. 155; Case No. A1-03-136, Docket No. 1) is DENIED. The Court certifies that an appeal from the denial of this motion may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith.Coppedge v. United States, 369 U.S. 438, 444-45 (1962). In addition, based upon the record before the Court, a dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983). Therefore, the Court will not issue Cortez-Rayas a certificate of appealability.
The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).