Opinion
No. 2:03-CR-0076 (01).
April 12, 2005
REPORT AND RECOMMENDATION
Defendant MANUEL LOPEZ-RUIZ has filed with this Court a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends the motion be DENIED.
I. PROCEDURAL HISTORY
On July 9, 2003, defendant was charged by indictment with one count of illegal re-entry after deportation. On September 17, 2003, defendant pled guilty. On November 17, 2003, defendant was sentenced to a term of 71 months confinement in a federal institution with a 3 years supervised release. Defendant did not directly appeal the conviction or sentence. He did, however, file the instant motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 on March 29, 2004.
II. DEFENDANT'S SOLE ALLEGATION
Defendant's only claim is that he received ineffective assistance of counsel because trial counsel failed to file an appeal for him.
III. MERITS OF THE CLAIM
In order to prevail on a claim that he was denied his constitutional right to the effective assistance of counsel, defendant must satisfy two requirements. "First, he would have to show that his attorney's conduct fell below an objective standard of reasonableness. Second, he would have to demonstrate a reasonable probability that he was prejudiced by his attorney's unprofessional errors." United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The question of whether a defendant has been subjected to ineffective assistance of counsel is a mixed question of fact and law. United States v. Rusmisel, 716 F.2d 301, 304 (5th Cir. 1983).
A showing that his attorney's conduct was deficient requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The performance inquiry must center on whether counsel's assistance was reasonable considering all the circumstances at the time of counsel's conduct. Id. at 688-690. As for the issue of prejudice, defendant must do more than simply allege prejudice, he must "affirmatively prove" prejudice. See Bonvillain v. Blackburn, 780 F.2d 1248, 1253 (5th Cir.), cert. denied, 476 U.S. 1143 (1986) ( Strickland, 466 U.S. at 693).
A habeas defendant claiming ineffective assistance of counsel bears the burden of demonstrating by a preponderance of the evidence "both an identifiable lapse on the part of his trial counsel and some actual, adverse impact upon the fairness of his trial resulting from that lapse." United States v. Cockrell, 720 F.2d 1423, 1425 (5th Cir. 1983), quoting Boyd v. Estelle, 693 F.2d 388, 389-90 (5th Cir. 1981). Counsel is not required to pursue every path until it bears fruit or until all conceivable hope withers. Lovett v. State of Florida, 627 F.2d 706, 708 (5th Cir. 1980). A strategy is not proven wrong because, if as is the usual circumstance, a guilty person is convicted. Cockrell at 1429; United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980) (failure to object to the introduction of a letter did not so infect the trial with unfairness as to make the resulting conviction a denial of due process).
There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and tactical decisions of trial counsel are entitled to a high degree of deference. Strickland, 466 U.S. at 692. A defendant must show that counsel's deficient performance prejudiced the defense. Id. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Furthermore, the focus of the prejudice analysis is on whether the result of the proceeding was fundamentally unfair or unreliable because of counsel's ineffectiveness. Lockhart v. Fretwell, 113 S.Ct. 838, 844 (1993).
In response to defendant's motion to vacate, the government submits, "A criminal defense attorney does not have a duty to perfect an appeal on behalf of his convicted client until his client makes it know that he wants to appeal." (Defendant's Response at 2 citing Childs v. United States, 995 F.2d 67, 69 (5th Cir. 1993)). The government then points to defendant's execution of a waiver of his right to appeal which was signed post-sentencing. (Government's Appendix to Response at 3). Finally, the government has submitted the affidavit of defense counsel who testified that she explained the appeals process to defendant, that he agreed to sign a waiver of appeal, and that he did not contact counsel again to inform her he had changed his mind about an appeal. (Government's Appendix to Response at 1-2).
Defendant, in his application, has offered nothing more than his own self serving statements. Defendant stated, "I asked my attorney to file the notice of appeal the day I was sentence (sic). She told me that it was useless that I was not going to get nothing out of it." (Defendant's Application at 4). The government, in its counter-argument, has provided the Court with the affidavit of defense counsel, as well as a copy of defendant's waiver of appeal. Defendant signed the Right to Appeal Waiver and therein stated he advised his attorney that he did not wish to appeal, and also that he was satisfied with the representation of trial counsel. Defendant has not responded or challenged such document in any way. For these reasons, defendant's claim must fail.
IV. RECOMMENDATION
Based upon the foregoing, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed by defendant MANUEL LOPEZ-RUIZ be, in all things, DENIED.
V. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner and to counsel of record for respondent by the most efficient means available.
IT IS SO RECOMMENDED.