Borjas-Hernandez v. United States
| Decision Date | 20 March 2014 |
| Docket Number | Civil Action No. 3:12-cv-08368,Criminal No: 3:09-cr-00163 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | JOEL ADOLFO BORJAS-HERNANDEZ, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 128). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned respectfully RECOMMENDS that Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 be DENIED, and this action be DISMISSED, with prejudice, and removed from the docket of the Court. Given that the undersigned conclusively FINDS that Movant is not entitled to the relief requested, an evidentiary hearing is not warranted. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
On September 23 and 24, 2007, law enforcement officers in and aroundHuntington, West Virginia responded to the scenes of three fatal heroin overdoses involving individuals named Patrick Byars, Adam Johnson, and George Shore. (ECF No. 129 at 6; ECF No. 134 at 1). At these scenes, and at other recent investigations of non-fatal overdoses in the area, officers found black tar heroin wrapped in a distinctive manner using plastic bags and foil. (ECF No. 134 at 2). Suspecting that the heroin was coming from a single source, a team of investigators headed by DEA Special Agent Tom E. Bevins began to trace the black tar heroin pipeline into Huntington. (ECF No. 129 at 6). Starting with a local dealer, Paul Dempsey, investigators learned that Huntington dealers and users purchased Mexican black tar heroin from two suppliers living in Columbus Ohio, Rick Jordan and Robert Melrose. Jordan and Melrose obtained the heroin from a source in Columbus known as "Carlos." (ECF No. 129 at 6; ECF No. 134 at 3). Cooperating witnesses subsequently identified Carlos from a photograph taken by the Ohio Bureau of Motor Vehicles, which corresponded to a driver's license issued in June 2006 bearing the name of Columbus resident "Jose Hernandez-Salazar." As it turned out, Jose Hernandez-Salazar was an alias used by Movant, Joel Adolfo Borjas-Hernandez ("Borjas-Hernandez"). (ECF No. 134 at 3).
Over the next six months, Bevins pursued Borjas-Hernandez, eventually obtaining the cooperation of both Jordan and Melrose in the investigation. (ECF No. 134 at 4-5). Jordan and Melrose confirmed that they were part of a distribution chain that supplied black tar heroin to individuals in Huntington, including Paul Dempsey and Michelle Byars, the wife of overdose victim, Patrick Byars. ((ECF No 134-10 at 13-14). Jordan, a former Huntington resident, began supplying heroin to his hometown after moving to Columbus. According to Jordan, when someone from Huntington wantedheroin, they called him, and he called Carlos. He would tell Carlos that "his people from West Virginia" were coming to town. Carlos would tell Jordan to call when they arrived and would then send a runner to meet Jordan and the West Virginians to make the transaction. (Id.). Melrose became involved in the business later, usually by intercepting Jordan's West Virginia customers on their way to Jordan's residence, and then stealing their business by agreeing to undercut Jordan's resale prices. (Id. at 21-22). With the help of Jordan and Melrose, Bevins made controlled purchases of heroin from Carlos, whom Jordan and Melrose positively identified as Borjas-Hernandez from the BMV photograph of Jose Hernandez-Salazar. (ECF No. 134-10 at 19, 21).
When Bevins felt he had accumulated enough evidence to connect the black tar heroin distributed by Borjas-Hernandez's organization to the fatal overdoses in Huntington, he swore out a criminal complaint against Borjas-Hernandez in the Southern District of West Virginia. ((ECF No. 128-4 at 2-4). On June 16, 2009, Borjas-Hernandez was arrested in Columbus on a suspected immigration violation and was subsequently transported to Huntington on the federal complaint.
On July 8, 2009, Borjas-Hernandez was indicted by a federal grand jury on one count of conspiracy to distribute 100 grams or more of heroin, which resulted in the death of an individual in violation of 21 U.S.C. § 846. (ECF No. 5). On August 24, 2010 Borjas-Hernandez pleaded guilty to an information containing one count of conspiracy to distribute 1 kilogram or more of heroin in violation of 21 U.S.C. § 846, pursuant to a plea agreement in which the Government agreed to dismiss the original indictment. (ECF Nos. 77, 113).
A pre-sentence investigation report was prepared by a United States probation officer on October 26, 2010, and revised on December 14, 2010. (ECF No. 137 at 1). The base offense level for distribution of 1 to 3 kilograms of heroin was 32 under U.S.S.G. § 2D1.1(c)(4), but the probation officer assigned a base offense level of 38 under U.S.S.G. § 2D1.1(a)(2), on the ground that "applicable relevant conduct establishes that the death of Patrick Byars resulted from the use of heroin distributed" by Borjas-Hernandez. (Id. at 16). Borjas-Hernandez received a four-level increase under U.S.S.G. § 3B1.1(a) because he was "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," which resulted in an adjusted offense level of 42. (Id. at 16-17). Borjas-Hernandez received a two-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a), which resulted in a total offense level of 40. (Id. at 17). Borjas-Hernandez had zero criminal history points, and a criminal history category of I. (Id. at 17). Thus, his corresponding sentencing guideline range was between 292 and 365 months imprisonment. (Id. at 20). Borjas-Hernandez objected to the calculation of his base offense level as 38 on the ground that there was "no proven link between the defendant's actions and the death." (ECF No. 137 at 24). Borjas-Hernandez also objected to the relevant conduct attributed to him and to his managing role in the offense on the ground that the investigation had uncovered multiple individuals known as "Carlos" who sold similarly packaged black tar heroin in the Columbus area. (Id. at 23-24). The probation officer declined to accept any of Borjas-Hernandez's objections. (Id. at 23-25).
Borjas-Hernandez's sentencing hearing was held on January 18, 2011. (ECF No. 114). The Government presented testimony from various witnesses including, DEAAgent Tom Bevins, Robert Melrose, Michelle Byars, and Huntington Police Sergeant David Castle, to establish Borjas-Hernandez's identity and involvement in the conspiracy, and the resulting death attributed to him. (Id. at 6-94). The District Court rejected Borjas-Hernandez's objections and adopted the presentence report and addendum in full, noting the recommended sentencing guideline range of 292 to 365 months imprisonment. (Id. at 108-10). The District Court denied Borjas-Hernandez's request for a downward variance, (Id. at 112-13), and sentenced him to 292 months imprisonment. (Id. at 123).
On February 1, 2011, Borjas-Hernandez appealed his conviction to the Fourth Circuit Court of Appeals. (ECF No. 101). The Fourth Circuit affirmed Borjas-Hernandez's conviction on October 25, 2011, (ECF No. 117, 118, 119), and his judgment took effect on December 7, 2011. (ECF No. 122). On November 30, 2012, Borjas-Hernandez timely filed the instant Petition to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, (ECF No. 128), and on January 24, 2013, the United States filed a Response in Opposition. (ECF No. 134).
Borjas-Hernandez asserts that his sentence was "based on materially false information in violation of his due process constitutional rights" under the Fifth Amendment. (ECF Nos. 128 at 4, 129 at 43). Borjas-Hernandez also argues that he received ineffective assistance of counsel, on the grounds that trial counsel (1) failed to "challeng[e] the geographical jurisdiction and venue of the Southern District of West Virginia" when the crime he allegedly committed occurred in Ohio, (ECF No. 129-1 at 12); (2) misadvised Borjas-Hernandez to plead guilty when he was "factually innocent,"(Id. at 22); and (3) failed to present the court with exculpatory evidence during the sentencing hearing and did not properly argue against the application of U.S.S.G. §2D1.1(a)(2). (Id. at 38-39). Borjas-Hernandez further alleges that he received ineffective assistance of appellate counsel for failing to investigate and argue that he was "factually innocent" of the death of Patrick Byars, or to otherwise challenge the applicability of U.S.S.G. § 2D1.1(a)(2). (Id. at 41-43).
A motion made pursuant to 28 U.S.C. § 2255 is a collateral attack on a conviction or sentence imposed in a separate proceeding. Wall v. Kholi, 131 S.Ct. 1278, 1284-85, 179 L.Ed.2d. 252 (2011). To succeed on such a motion, the movant must prove that the conviction or sentence was imposed in violation of the laws or Constitution of the United States; or the court imposing the sentence lacked jurisdiction; or the sentence exceeded the maximum authorized by law; or the sentence was otherwise subject to collateral attack. 28 U.S.C. § 2255. Because a § 2255 motion seeks to deny, evade, or impeach a judgment, claims of error that have previously been raised and rejected on a direct appeal of the judgment may not be raised again in a § 2255 motion. United States v. Harrison, No. 96-7579, 1997 WL 499671, at *1 (4th Cir. Aug. 25, 1997) (citing ...
To continue reading
Request your trial