Barajas-Sanchez v. United States
| Decision Date | 04 December 2012 |
| Docket Number | 3:11-CV-3226-K,3:09-CR-290-K(02) |
| Parties | ANDRES BARAJAS-SANCHEZ, #39525-177, Movant, v. UNITED STATES OF AMERICA Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Before the Court for consideration is movant Andres Barajas-Sanchez's pro se motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, the Government's response, and movant's reply. For the reasons set out below, the § 2255 motion is denied.
On October 7, 2009, in a sealed indictment, the Government charged movant and a co-defendant with conspiracy to possess with intent to distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C. § 846, 841(a)(1), (b)(1)(A). (doc. 1). On February 23, 2010, movant pled guilty pursuant to a plea agreement. (docs. 39, 48). On December 15, 2010, this Court sentenced movant to 84 months imprisonment and a three-year term of supervised release. (doc. 70). Movant did not file a direct appeal.
On November 18, 2011, movant filed his initial § 2255 motion alleging that his plea was involuntary and ineffective assistance of counsel. The government filed its response on December 29, 2011, and movant filed a reply brief on April 6, 2012.
Following conviction and exhaustion or waiver of the right to direct appeal, the court presumes that a petitioner stands fairly and finally convicted. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc)); see also United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Under 28 U.S.C. § 2255, a petitioner can collaterally challenge his conviction only on constitutional or jurisdictional grounds. Furthermore, movant voluntarily pled guilty and waived his right to collaterally attack his conviction, except for claims challenging the voluntariness of his plea and waiver and ineffective assistance of counsel. (See doc. 39). Generally, "an informed and voluntary waiver of post-conviction relief is effective to bar such relief." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam), accord United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). "A defendant's waiver of [his or] her right to appeal is not informed if the defendant does not know the possible consequences of [the] decision." United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992). A defendant's waiver of the right to appeal requires special attention from the district court, and it is the district court's responsibility to ensure that a defendant fully understands his right to appeal and the consequences of waiving that right. Id.
When movant pled guilty, he waived his right to contest his conviction and sentence either on direct appeal or in a motion to vacate except for: 1) direct appeal claims that the sentence either exceeded the statutory maximum or was due to an arithmetic error; 2) a claim that either his appeal waiver or his guilty plea were not voluntary; or 3) claims of ineffective assistance of counsel. (See Plea Agreement at ¶ 10). In his § 2255 motion, Petitioner alleges defense counsel rendered constitutionally ineffective assistance. Specifically, he claims counsel: 1) coerced him into entering the plea agreement by telling him that, if he did not plead guilty, he would be indicted on additional charges (grounds one and three); 2) failed to interview witnesses and investigate the government's case prior to negotiating the plea agreement (ground two); 3) failed to defend movant properly in court, such that he received too long a sentence (Mot. at 2); and 4) failed to file a notice of appeal "as mandated by the law." (Reply at 2).
At his rearraignment hearing, movant testified through a Spanish interpreter that he understood that he was testifying under oath and could be charged with perjury if he made a false statement. (Rearraignment at 3). Movant further testified that he could read and write in Spanish, that the indictment had been read to him in Spanish, that his plea agreement and factual resume had been read to him in Spanish before he signed them, that he fully discussed the plea agreement and factual resume with his attorney before signing them, and that he understood everything in the agreement and factualresume. Id. at 2, 5, 10, 13. Movant also testified that he understood that, even though he had spoken with his attorney about the sentencing guidelines, he should not rely on any statement or assurance by anyone as to what sentence he would receive because only the judge could make that decision, that the court is not bound by facts stipulate to by the parties, and that a presentence report would be prepared Id. at 9-10. Movant also testified that, other than the written plea agreement, no-one had made any promises or assurances of any kind in order to get him to plead guilty. Id. at 13. Movant also testified that he understood that his guilty plea would include a term of imprisonment of no less than ten years up to life imprisonment and that, if his sentence was more than he expected it to be, he would still be bound by his guilty plea. Id. at 14-15. Finally, movant testified that he understood that he was waiving his right to appeal except in limited circumstances. Id. at 16.
Although a guilty plea ordinarily waives all nonjurisdictional defects, including ineffective assistance claims, a petitioner may raise ineffective assistance to the extent that it affected the voluntariness of his plea. United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008) (). To establish ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel's performance was deficient, and (2) that there is areasonable probability that, but for counsel's errors, defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57-59 (1985); Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Cavitt, 550 F.3d at 441; United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996). A court need not address both components of this inquiry if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697.
"Ordinarily a defendant will not be heard to refute his testimony given under oath." United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985). United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). Courts also presume the regularity of court documents and accord them "great weight." See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (); Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986) (); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) ().
Movant asserts that his plea was involuntary because his attorney coerced him to pleading guilty by advising him that the government would charge him with additionalcrimes if he did not plead guilty. (Mot. at 5, 7). Movant testified at his rearraignment hearing that he understood what he had been charged with, that he was guilty of all of the elements of the crime, that the plea agreement and factual resume had been read and explained to him, that he understood the sentencing range, that he understood that only the judge decided his sentence and that he should rely on no other statements regarding a possible sentence, that he understood that the judge would review the PSR before sentencing him, which could contain additional facts not contained in the factual resume, and that other than the written plea agreement, no-one had made any promises or assurances of any kind in order to get him to plead guilty. Therefore, the record does not support movant's contention that his guilty plea was a coerced plea.
The Fifth Circuit has recognized that a movant may seek habeas relief on the basis that his attorney made alleged promises to him, even though this is inconsistent with representations he made in court when entering his plea, if he proves :1) the exact terms of the alleged promise; 2) exactly when, where, and by whom the promise was made; and 3) the precise identity of an eyewitness to the promise. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998), citing Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir. 1989). If a movant produces independent indicia of the merit of the allegations of alleged promises, typically by way of affidavits from reliable third parties, he is entitled to an evidentiary hearing on the issue. Id. However, when the movant's "showing is inconsistent with the bulk of [his] conduct or otherwise fails to meet [his] burden of proof in light of other evidence in the record," the Court may dispense with hisallegations without an evidentiary hearing. Id. Movant has failed to demonstrate that his attorney coerced his guilty plea by making any threat or promise to him. Furthermore, the agreement that the government would not bring any additional charges against movant was, indeed, part of the written plea agreement. (Plea Agreement, ¶ 7). Even had movant's attorney communicated to him a statement from...
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