Alferez v. United States
| Decision Date | 14 May 2014 |
| Docket Number | EP-13-CV-215,EP-10-CR-2736-KC-1 |
| Parties | MARCO ANTONIO ALFEREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Texas |
On this day, the Court considered Petitioner's Verified Motion to Vacate and Set Aside Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 126.1 By the Motion, Petitioner challenges his criminal sentence on the ground that he received ineffective assistance of counsel. For the following reasons, the Court DENIES the Motion in part, but RESERVES RULING on one of Petitioner's claims pending the outcome of an evidentiary hearing.
In August 2010, federal law enforcement officers (the "Federal Agents") observed an Internet Protocol address ("IP Address") sharing child pornography over a peer-to-peer file-sharing service. See Plea Agreement, ECF No. 72, at 14-16; Mot. 7. The Federal Agents identified Petitioner as the subscriber associated with the IP address. Plea Agreement 14; Mot. 7.
On September 20, 2010, the Honorable United States Magistrate Judge Richard P. Mesa issued a warrant authorizing a search of Petitioner's residence and effects (the "Search Warrant"), ECF No. 126-1, at 105-09. The Search Warrant authorized the Federal Agents to conduct this search at any time on or before October 1, 2010, between the hours of 6:00 a.m. and10:00 p.m. See Search Warrant.
The Federal Agents executed the Search Warrant on September 21, 2010. Plea Agreement 16; Mot. 7. The Federal Agents found 98 commercially available child pornography videos on Petitioner's computer. See Plea Agreement 16-22; Mot. 7-8. These videos were located in Petitioner's shared directory, which thereby made them available for distribution over the internet. See Plea Agreement 16; Mot. 8. The Federal Agents also found 157 "hidden camera" videos produced by Petitioner himself that depicted hundreds of his minor students in various states of undress. See Plea Agreement 22; Mot. 8. The Federal Agents also found a video depicting Petitioner engaging in sexual relations with a fourteen-year-old female. See Plea Agreement 22-23; Mot. 8.
The Federal Agents interrogated Petitioner during the course of the search. Plea Agreement 23; Mot. 21. During the interrogation, Petitioner admitted to receiving, distributing, and producing child pornography. Plea Agreement 23; Mot. 22. Petitioner also admitted that "he was glad the [Federal A]gents caught him as he would be unable to stop otherwise." Plea Agreement 23; Mot. 22.
On October 20, 2010, a grand jury charged Petitioner in an indictment (the "Indictment"), ECF No. 21, with (1) sexual exploitation of children; (2) receipt and distribution of material involving the sexual exploitation of children; and (3) possession of material involving the sexual exploitation of children. Indictment 1.
Petitioner and the Government then entered into a Plea Agreement. In exchange for Petitioner pleading guilty to one count of sexual exploitation and one count of distribution of child pornography, the Government agreed to dismiss the remaining counts of the Indictment. See Plea Agreement 1. Pursuant to the Plea Agreement, Petitioner stipulated that the facts setforth in the Plea Agreement's factual basis (the "Factual Basis") were true and correct. See id. at 4, 12, 14-23. Notably, Petitioner stipulated that the Federal Agents interrogated Petitioner only after advising him of his Miranda rights, and that Petitioner waived those rights before providing the incriminating statements identified above. See id. at 23.
On August 2, 2011, the Honorable United States Magistrate Judge Norbert J. Garney held a plea hearing in the Case (the "Plea Hearing"). See Plea Hr'g Tr., ECF No. 130. Judge Garney engaged in a colloquy with Petitioner and ensured that his guilty plea was knowing and voluntary. See id. at 2-16. Petitioner affirmed to the Court that the information in the Factual Basis was true and correct, including that he made incriminating statements to the Federal Agents only after being advised of his Miranda rights and opting to waive them. See id. at 14-16. Judge Garney then accepted Petitioner's guilty plea. See id. at 16.
Following the Plea Hearing, a United States Probation Officer prepared a presentence investigation report in the Case (the "PSR"), ECF No. 84. The Probation Officer determined that Petitioner's total offense level was 49. See PSR ¶ 2936. However, because the United States Sentencing Guidelines provide that "[a]n offense level of more than 43 is to be treated as an offense level of 43," U.S.S.G. Ch. 5 Pt. A, App. Note 2 (2011),2 the Probation Officer adjusted Petitioner's effective total offense level to 43. See PSR ¶ 2936 Because Petitioner had not previously been convicted of a crime, the Probation Officer assigned Petitioner a criminal history category of I. See id. ¶ 2939; U.S.S.G. § 4A1.1 (2011). This calculation resulted in a guideline sentence of life imprisonment. See PSR ¶ 2964; U.S.S.G. Ch. 5 Pt. A (2011). However, a lifesentence would exceed the statutory maximum for the offenses to which Petitioner pleaded guilty. See 18 U.S.C. § 2251(e) (); id. § 2252(b)(1) (). The Probation Officer therefore adjusted the guideline imprisonment range to the statutory maximum of 360 months for the sexual exploitation offense and 240 months for the child pornography offense. See PSR ¶¶ 2963-64; U.S.S.G. § 5G1.1(a) (2011) (). Neither Petitioner nor the Government objected to the PSR. See ECF No. 84-3.
On January 5, 2012, the Government requested that the Court sentence Petitioner consecutively rather than concurrently on the two counts to which he pleaded guilty. See ECF No. 85. The Government based its request on U.S.S.G. § 5G1.2(d), which permits a sentencing court to impose consecutive sentences, but only when necessary to produce a combined sentence equal to the top of the Guidelines range in cases where the statutory maximum is less than the minimum total punishment prescribed by the Guidelines. See United States v. Williams, 602 F.3d 313, 319 (5th Cir. 2010); United States v. Saleh, 257 F. App'x 740, 744 (5th Cir. 2007); U.S.S.G. § 5G1.2(d) (2011); ECF No. 85.
The Court held a sentencing hearing in the Case (the "Sentencing Hearing") on January 12, 2012. See Sentencing Hr'g Tr., ECF No. 123. After hearing evidence and allocution, the Court sentenced Petitioner to 360 months of incarceration on the sexual exploitation count and240 months on the child pornography count.3 Id. at 33. The Court, following the Government's recommendation, imposed these sentences consecutively rather than concurrently. See id.
Petitioner filed the Motion on July 8, 2013. See Mot. The Government filed a response to the Motion (the "Response"), ECF No. 132, on September 12, 2013. Petitioner did not file a reply.
28 U.S.C. § 2255(a).
After a petitioner has been convicted and has exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)). Accordingly, "[r]elief 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) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)). Typically, before a court will grant relief pursuant to § 2255,the petitioner must establish that "(1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, a collateral challenge to a conviction or sentence should not serve as a substitute for a direct appeal. Frady, 456 U.S. at 165; United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a petitioner must either: (1) demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error, or (2) show that he is "actually innocent" of the crime for which he was convicted. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). The cause and actual prejudice standard is "significantly more rigorous than even the plain error standard . . . applied on direct appeal." Gaudet, 81 F.3d at 589. If the petitioner does not meet either burden, then he is procedurally barred from attacking his conviction or sentence. United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992)...
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