Aguirre v. United States
| Decision Date | 05 November 2021 |
| Docket Number | CRIMINAL ACTION 4:12-CR-00295-SDJ-KPJ-10,Civil Action 4:19-CV-00401-MAC-CAN |
| Parties | JOSE ECCEHOMO JARAMILLO AGUIRRE, #26312-078, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Texas |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pro se Petitioner Jose Eccehomo Jaramillo Aguirre filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising alleged constitutional violations concerning his conviction in the Eastern District of Texas, Sherman Division [Dkt. 1]. The motion was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for disposition of the case 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 [Dkt. 2]. After reviewing the Motion [Dkt. 1], and all other relevant filings, the Court recommends the Motion [Dkt. 1] be DENIED and this case be DISMISSED WITH PREJUDICE.
On December 12, 2012, a Grand Jury returned an Indictment charging Petitioner in two counts: Count One-violation of 21 U.S.C. § 936, Conspiracy to Import Five Kilograms or More of Cocaine and to Manufacture and Distribute Five Kilograms or More of Cocaine Intending and Knowing that the Cocaine Will Be Unlawfully Imported into the United States and Count Two-violation of 21 U.S.C. § 959 and 18 U.S.C § 2, Manufacturing and Distributing Five Kilograms or More of Cocaine Intending and Knowing that the Cocaine Will Be Unlawfully Imported into the United States. United States v. Aguirre, No. 4:12-cr-00295-SDJ-KPJ-10 (E.D. Tex. Dec. 12, 2012), ECF No. 1, Sealed.[1] On May 3, 2017, the Government filed a Notice of Plea Agreement, informing the Court that it entered into a plea agreement with Petitioner relating to the counts in the Indictment. Id. ECF No. 235. On May 17, 2017, before the undersigned, Petitioner, alongside counsel and with the aid of an interpreter, pleaded guilty to Count One of the Indictment pursuant to the written plea agreement. Id. ECF No. 272. Petitioner's signed plea agreement states that he “understands the nature and elements of the crime to which guilt is admitted” and “agrees that the factual basis” he signed is “true and will be submitted as evidence.” Id. ECF No. 275, Sealed. At Petitioner's change of plea hearing, the Government summarized Count One of the Indictment, read the essential elements of the offense, as well as the maximum range of penalties for pleading guilty to such charge. Id. ECF No. 421 at 9-13. Petitioner testified that he understood the Indictment, the factual basis for his plea of guilty as to Count One, and the range of penalties he faced. Id. At the plea hearing, Petitioner stipulated to possessing with the intent to distribute 450 kilograms or more of a mixture or substance containing a detectable amount of cocaine, and that this amount was involved after his entrance into the conspiracy. Id. ECF No. 275 at 1-3; ECF No. 277. The undersigned entered findings of fact and recommendations that the Court accept Petitioner's guilty plea. Id. ECF No. 278. On May 18, 2017, United States District Judge Marcia A. Crone adopted the recommendations of facts of the Magistrate Judge and adjudged Petitioner guilty of Count One, but deferred acceptance of the plea agreement until review of the Presentence Report (“PSR”). Id. ECF No. 285, 1-2. The Probation Office filed the initial Presentence Investigation Report for Petitioner with the Court on July 7, 2017. Id. ECF No. 296, Sealed. On July 21, 2017, Petitioner, through counsel, requested an extension to time submit any objections to the PSR. Id. ECF No. 301. No objections thereafter were filed. The Final PSR was filed on August 22, 2017, along with the Sentencing Recommendation as to Petitioner. Id. ECF Nos. 317 Sealed, 318 Sealed. On October 2, 2017, alongside counsel and with the aid of an interpreter, Petitioner was sentenced to 293 months imprisonment on Count One, with five years of supervised release to follow. Id. ECF No. 352. The Judgment was docketed on October 4, 2017. Id. ECF No. 357.
On October 11, 2017, Petitioner filed a notice of direct appeal. Id. ECF No. 367. On the same day, Petitioner's counsel filed an unopposed Motion to Withdraw as Counsel on appeal. Id. ECF No. 368. The Court granted counsel's motion to withdraw and appointed new counsel for Petitioner's appeal. Id. ECF No. 382. On July 31, 2018, the Fifth Circuit dismissed Petitioner's appeal as frivolous and denied his request for appointment of substitute counsel. United States v. Aguirre, 730 Fed.Appx. 226, 227 (5th Cir. 2018) (per curiam). On May 31, 2019, Petitioner filed the instant Motion under 28 U.S.C. § 2255 [Dkt. 1]. See 28 U.S.C. § 2255(f) ().
In the Motion, Petitioner argues: (1) he received ineffective assistance of counsel at the trial level on the grounds that Petitioner's plea was not knowing and voluntary because he did not understand his plea agreement in English; that counsel failed to have all trial documents, proceedings, and communication with counsel translated into Spanish; that counsel “coerced” Petitioner into accepting his plea agreement; and that counsel erred by not requesting a downward departure in to his sentence and by not challenging the three-point enhancement for his role in the conspiracy; (2) that he received ineffective assistance of counsel on appeal for not challenging the sentencing enhancement, for failing to seek a safety valve reduction to his sentence, and for failing to object to trial counsel's alleged errors relating to translation of trial proceedings and documents; and (3) that the prosecutor committed misconduct by allowing Petitioner to be illegally extradited, by offering and accepting a plea agreement based on allegedly untrue facts, and by failing to ensure that Petitioner's rights to a translator were satisfied [Dkts. 1 at 4-5; 1-1 at 5-23]. Petitioner asks the Court to “vacate [his] sentence and conviction, and order his immedaite [sic] release, or alternatively withdraw his guilty plea and commence new proceedings” [Dkt. 1 at 12]. The Government filed a response on August 23, 2019, arguing Petitioner's claims of ineffective assistance counsel and prosecutorial misconduct are “without merit, ” and that “his claim that his offense level was miscalculated is barred from collateral review” [Dkt. 8 at 9].
28 U.S.C. § 2255(a). A § 2255 motion, or “collateral review, ” is “fundamentally different from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A Petitioner in a § 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction. “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.” United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted).
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST. art. VI (spelling in original). The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The two-prong Strickland test applies to cases involving guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57 (1985). The duty of defense counsel to a defendant who desires to enter a plea of guilty is to ascertain that the plea is “voluntarily and knowingly” made. United States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984). When a petitioner asserts an ineffective assistance claim arising out of a plea, the petitioner must either show that he did “not understand the nature of a constitutional protection” he waived or that he had “such an incomplete understanding of the charges against him that this plea cannot stand as an admission of guilt.” James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Ineffective assistance of counsel during a sentencing hearing is also constitutionally impermissible. Lafler v. Cooper 566 U.S. 156, 165 (2012).
To succeed on a claim of ineffective assistance of counsel, a petitioner must first “show that counsel's representation fell below an objective standard of reasonableness, ” with reasonableness judged under “prevailing professional norms.” Strickland, 466 U.S. at 687-88. This standard requires the reviewing court to “recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Second the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “Reasonable probability, ”...
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