Campa v. United States

• Decision Date: 15 January 2021
• Docket Number: Case No.: 3:15-cr-53-J-32JBT,Case No.: 3:17-cv-1264-J-32JBT
• Parties: HERMENEGILDO NEVAREZ CAMPA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Florida

HERMENEGILDO NEVAREZ CAMPA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No.: 3:17-cv-1264-J-32JBT

Case No.: 3:15-cr-53-J-32JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

January 15, 2021

ORDER

This case is before the Court on Petitioner Hermenegildo Nevarez Campa's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 1).¹ Petitioner pleaded guilty to one count of child sex trafficking, in violation of 18 U.S.C. § 1591. He challenges his conviction and sentence based on the alleged ineffectiveness of counsel and a claim of sentencing error. The United States has responded in opposition. (Civ. Doc. 6). Petitioner filed a reply (Civ. Doc. 9) and a notice (Civ. Doc. 10).

Pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings in the United States District Courts ("§ 2255 Rule(s)"), the Court ordered that therecord be expanded to include additional information about Ground One, in which Petitioner alleges that counsel failed to advise him about his appeal rights. (Civ. Doc. 11). The Court also ordered the United States to file a supplemental response regarding Grounds Two through Five of the § 2255 Motion. (Civ. Doc. 15). The record has since been expanded (Civ. Doc. 12), and the parties have filed supplemental briefs. (Civ. Doc. 14, Petitioner's Response to Expanded Record; Civ. Doc. 16, United States' Supplemental Response).

Under § 2255 Rule 8(a), the Court has determined that an evidentiary hearing is not necessary to decide the motion. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming that the facts he alleges are true, he still would not be entitled to any relief). For the reasons set forth below, Petitioner's § 2255 Motion is due to be denied.

I. Background

On April 16, 2015, a grand jury indicted Petitioner on two counts of child sex trafficking, in violation of 18 U.S.C. § 1591. (Crim. Doc. 14, Indictment). Count One charged Petitioner with sex trafficking of a minor under the age of 14 years, which carried a mandatory minimum sentence of 15 years in prison. 18 U.S.C. § 1591(b)(1). Count Two charged Petitioner with sex trafficking of a minor who was at least 14 years old, which carried a mandatory minimumsentence of 10 years in prison. Id., § 1591(b)(2).

On December 21, 2015, Petitioner pleaded guilty to Count Two of the indictment pursuant to a written plea agreement. (Crim. Doc. 38, Plea Agreement; see also Crim. Doc. 72, Plea Transcript). Petitioner admitted that he paid A.B., a 15-year-old girl, for sex after he saw her advertisements on Backpage.com. (Crim. Doc. 38 at 21-24). As part of the plea agreement, Petitioner waived the right to appeal his sentence except under four circumstances not relevant here. (Id. at 15-16). In exchange for his guilty plea, the United States agreed (among other things) to dismiss Count One of the indictment and to consider moving for a substantial assistance reduction based on Petitioner's cooperation. (Id. at 3, 4-5). The Magistrate Judge who presided over the plea colloquy reported that "[a]fter cautioning and examining Defendant under oath concerning each of the subjects mentioned in Rule 11, I determined that the guilty plea was knowledgeable and voluntary, and that the offense charged is supported by an independent basis in fact containing each of the essential elements of such offense." (Crim. Doc. 39).² The Court accepted Petitioner's guilty plea and adjudicated him accordingly. (Crim. Doc. 41).

Petitioner's counsel, Jose Rodriguez, moved five times to continue the sentencing hearing, explaining in four of the motions that Petitioner was cooperating with law enforcement and was being evaluated for a substantial assistance reduction. (Crim. Docs. 44, 47, 58, 61). Counsel also moved for a downward variance under 18 U.S.C. § 3553(a) and a downward departure under U.S.S.G. § 5K2.10. (Crim. Doc. 45).

Ultimately, the government did not move for a substantial assistance reduction, and the sentencing hearing went forward on May 25, 2017. (Crim. Doc. 70, Sentencing Transcript). According to the Presentence Investigation Report (PSR), Petitioner's advisory sentencing guidelines range was 135 to 168 months in prison, based on a total offense level of 33 and a Criminal History Category of I. (Crim. Doc. 52, PSR at ¶ 80). The Court accepted the guidelines calculation but varied 10 months below the guidelines range, sentencing Petitioner to a term of 125 months in prison (five months above the mandatory minimum). (Crim. Doc. 70 at 71; Crim. Doc. 66, Judgment).

Petitioner did not appeal the conviction and sentence. This § 2255 Motion followed.

II. Discussion

Under 28 U.S.C. § 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 authorizes a district court to grant relief on four grounds: (1) the sentence was imposed in violation of theConstitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C § 2255(a). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamental as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc). "[A] collateral attack is the preferred vehicle for an ineffective-assistance claim." United States v. Padgett, 917 F.3d 1312, 1318 (11th Cir. 2019).

To establish ineffective assistance of counsel, a § 2255 petitioner must show both: (1) that his counsel's performance was constitutionally deficient, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Martin v. United States, 949 F.3d 662, 667 (11th Cir. 2020). In determining whether counsel was deficient, "[t]he standard for effective assistance of counsel is reasonableness, not perfection." Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466 U.S. at 687). "In the light of the 'strong presumption' that counsel's actions [fell] within the wide range of constitutionally adequate assistance, a movant 'must establish that no competent counsel would have taken the [challenged] action.'" Khan v. United States, 928 F.3d 1264, 1272 (11th Cir.) (quoting Chandler v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)), cert.dismissed, 140 S. Ct. 339 (2019). To demonstrate prejudice, the petitioner must show a reasonable likelihood that the result of the proceeding would have been different but for counsel's error. Martin, 949 F.3d at 667 (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). The Court considers the totality of the evidence in determining whether a petitioner has established deficient performance and prejudice. Strickland, 466 U.S. at 695. However, because both prongs are necessary, "there is no reason for a court... to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

A. Ground One

Petitioner alleges that trial counsel "never discusse[d] [his] appeal rights in any way." (Civ. Doc. 1 at 4). According to Petitioner, he "was going to appeal [his] case" but his lawyer advised him he was not permitted to do so. Petitioner states that he would like to appeal his conviction and sentence. He believes there were "a lot of errors" in his case and that there were cases worse than his in which the defendant received a lower sentence. Petitioner does not allege in the § 2255 Motion that counsel ignored a direct instruction to file a notice of appeal. Rather, Petitioner alleges a failure to consult.³

The United States responds that Petitioner's claim lacks merit. It argues that Petitioner's allegation that counsel failed to discuss his appeal rights "in any way" is contradicted by his other allegation that counsel advised him he was not permitted to appeal his sentence, which implies that he and counsel discussed an appeal. (See Civ. Doc. 6 at 7). The United States also argues that Petitioner's claim is refuted by trial counsel's affidavit, which the government attached to its response. (Civ. Doc. 6-1, Affidavit of Jose Rodriguez).

In the affidavit, Mr. Rodriguez states that he recalls "the events that are raised in Mr. Campa's 2255 motion." (Id. at ¶ 1). He avers:

3. I was retained in this matter on April 22, 2015.

4. During my representation, I spoke directly to Mr. Campa in Spanish , as I am fluent in Spanish, about his discovery, the evidence presented against him by the Government, the procedure [sic] of the case, sentencing options, mandatory minimums, substantial assistance and appeals. After reviewing his discovery, we discussed his options to go to trial, enter a plea with the benefit of a plea agreement or to plead guilty open to the court.

5. I further entered into negotiations on behalf of Mr. Campa and at his request. Prior to his plea, he maintained he had no desire to cooperate with the Government. The decision by Mr. Campa to cooperate came shortly after the entry of his plea.

6. I procured a plea agreement from the Government and explained directly and in Spanish to Mr. Campa each and every term of the plea agreement, the mandatory minimum terms of incarceration applicable and the appellate waiver found in the plea agreement. During that consultation, I discussed with Mr. Campa his right to appeal and also, if he entered into the plea agreement and signed it, he would waive his right to appeal except for the exceptions stated therein.

7. Based on our conversation, the mandatory minimum

...