Cruz-Hernandez v. United States, CASE NO. 1:14-CR-201-LJO-BAM-1

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
• Decision Date: 19 September 2016
• Parties: FAUSTO ARTHUR CRUZ-HERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Docket Number: CASE NO. 1:14-CR-201-LJO-BAM-1,CASE NO. 1:15-CV-2326-LJO

FAUSTO ARTHUR CRUZ-HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

CASE NO. 1:14-CR-201-LJO-BAM-1
CASE NO. 1:15-CV-2326-LJO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 19, 2016

MEMORANDUM DECISION AND ORDER RE PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE, PURSUANT TO 28 U.S.C. § 2255 AND MOTION TO PROCEED IFP

(Docs. 24, 27, 28)

Petitioner Fausto Arthur Cruz-Hernandez ("Petitioner"), a federal prisoner proceeding pro se, has moved to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255") (Docs. 24 & 27)¹, along with an application to proceed in forma pauperis ("IFP") (Doc. 28). In accordance with orders by this Court (Docs. 25, 34, 35, 40), the Government filed two opposition briefs to Petitioner's motion (Docs. 29, 45), Petitioner's former attorney filed a sworn declaration (Doc. 42), and Petitioner filed a reply (Doc. 48).

For the reasons below, the Court DENIES Petitioner's § 2255 motion as to his claims regarding the Court's jurisdiction, and two of his claims regarding ineffective assistance of counsel and DENIES his motion to proceed IFP. However, the Court GRANTS Petitioner's unopposed request for an evidentiary hearing for the limited purpose of resolving Petitioner's claim that his

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former attorney was ineffective in that she failed to file a notice of appeal after Petitioner requested that she do so.

BACKGROUND

A. Indictment and Plea Agreement

On September 11, 2014, Petitioner was indicted by a federal grand jury on the charge of bank robbery. Doc. 1 at 1-2. The indictment charged that Petitioner

...by force, violence and intimidation did take from the person or presence of another money, namely approximately $2,500, belonging to and in the care, custody, control and management of Bank of the West, located at 7062 North First Street, Fresno, California, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation. All in violation of Title 18, United States Code, Section 2113(a).

Id.

On November 10, 2014, Petitioner executed a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Doc. 18 at 1. It provides, in relevant part:

2. Nature, Elements and Possible Defenses

The defendant has read the charge against him contained in the indictment and that charge has been fully explained to him by his attorney ... Further, the defendant fully understands the nature and elements of the crimes in Count One of the indictment to which he is pleading guilty, together with the possible defenses thereto, and has discussed them with his attorney ...

COUNT 1 - Bank Robbery

The elements of the crime of bank robbery are:

First, the defendant took money belonging to Bank of the West;
Second, the defendant used force and violence, or intimidation in doing so; and
Third, the deposits of Bank of the West were then insured by the Federal Deposit Insurance Corporation.

3. Agreements by the Defendant

...

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(b) Defendant agrees to enter a plea of guilty to Count 1 of the indictment which charge[s] him with bank robbery in violation of Title 18, United States Code, Section 2113.
...

(e) Defendant knowingly and voluntarily waives his Constitutional and statutory rights to appeal his plea, sentence and conviction except as set forth within this paragraph. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal any sentence imposed. Acknowledging this, the defendant knowingly and voluntarily agrees to waive all Constitutional and statutory rights to appeal his conviction and sentence, including but not limited to an express waiver of appeal of this plea (including any venue and statute of limitations issues) and to attack collaterally his mental competence, and his plea, or his sentence, including but not limited to, filing a motion under 28 U.S.C. § 2255, 28 U.S.C. § 2241, or 18 U.S.C. § 3742, or otherwise.
...

(f) Defendant further acknowledges that his plea of guilty is voluntary and that no force, threats, promises or representations have been made to anybody, nor agreement reached, other than those set forth expressly in this agreement, to induce the defendant to plead guilty.

...

(j) The defendant understands that the Court must consult the Federal Sentencing Guidelines (as promulgated by the Sentencing Commission pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998, and as modified by United States v. Booker and United States v. Fanfan, 543 U.S. 220 (2005)), and must take them into account when determining a final sentence. Defendant understands that the Court will determine a non-binding and advisory guideline sentencing range for this case pursuant to the Sentencing Guidelines. ...

5. Factual Basis

On July 22, 2014, the defendant presented a note to a teller at Bank of the West at 7062 N. First Street in Fresno. The note said, "I want $50,000," and "This is a robbery." The defendant said, "hundreds only." The teller gave the hundreds in her drawer, and he asked what else she had. She said nothing else.

The teller attempted to push the alarm button, but the defendant saw what she was doing and said, "don't push the button, put your hands up." He lifted a black bag he was carrying, reached in and pulled out what the teller recognized as a flat black semi-automatic handgun, and told the tellers to "get on the floor." The tellers got down on the floor and the defendant left the bank. On August 24, 2014, the defendant was arrested.

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Post-Miranda, the defendant admitted to robbing Bank of the West. He admitted to using a gun, but said that it was not a real gun.

Bank [of the West] deposits are insured by the Federal Deposit Insurance Corporation (FDIC).

6. Potential Sentence

The following is the maximum potential sentence which defendant faces:

COUNT 1:

(a) Imprisonment.

Minimum: None.
Maximum: Twenty years imprisonment
...

7. Waiver of Rights

Defendant understands that by pleading guilty he surrenders certain rights, including the following:

(a) If defendant persisted in a plea of not guilty to the charges against him, he would have the right to be represented by an attorney at all stages of the proceedings, and would have a right to a public and speedy trial ...

Defendant understands that by pleading guilty he is waiving all of the rights set forth above and defendant's attorney has explained those rights to him and the consequences of his waiver of those rights.

Doc. 13 at 1-8.

B. Change of Plea Hearing

On November 17, 2014, Petitioner and his former attorney Peggy Sasso ("Ms. Sasso") appeared before this Court for his change of plea hearing, where he pleaded guilty to the count in the indictment, pursuant the plea agreement. Docs. 13, 14; Rough Transcript of November 17, 2014 Change of Plea Proceedings ("Plea Tr.").

During the plea colloquy, Petitioner affirmed to the Court that he wanted to change his plea from not guilty to guilty. Plea Tr. at 1:17-22. He told the Court that he can read English, acknowledged that he recognized the signature on the plea agreement as his own, that his signature on the plea agreement meant that he had the chance to review the entire document with the help of

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Ms. Sasso, that Ms. Sasso answered any questions to his satisfaction, and that he had no more questions about the plea agreement. Id. at 1:23; 2:1-9. Petitioner affirmed that he understood the elements of the crime to which he was pleading guilty, that he understood the factual basis set forth in the plea agreements, and that those facts were true. Id. at 2:10-16. He stated that he understood that the maximum possible sentence he faced is 20 years' imprisonment, the maximum fine is $250,000, and he could face both the fine and imprisonment. Id. at 2:17-25. Petitioner also stated that he understood that he would be waiving his right to appeal by signing the plea agreement. Id. at 3:1-3. Petitioner affirmed his understanding that the decision whether to plead guilty was his own, and that if he wished to continue to plead not guilty, the Court would set the matter for trial in a timely fashion by judge or jury, during which he would have the right to testify and call witnesses Id. at 3:10-25; 4:1-13 The Court informed him that by pleading guilty, he would give up his rights to a trial, and Petitioner affirmed his understanding of these rights and that he wished to give these rights up Id. at 4:11-15. He moreover stated that no one was forcing or threatening him to plead guilty and that no one had promised him something other than what was contained in the plea agreement. Id. at 4:15-20. The Court proceeded to read the charge² contained in the Indictment, and Petitioner pleaded guilty to this charged offense. Id. at 5:7-25; 6:1-11. The Court then accepted Petitioner's plea as knowing, intelligent, and voluntary. Id. at 6:12-14.³

C. Sentencing

According to Petitioner's Presentence Investigation Report ("PSR") (Doc. 16), his total offense level was 29, after considering that the property of a financial institution was taken, that Petitioner "displayed" what the victim perceived as a firearm, Petitioner's career offender status, and acceptance of responsibility. PSR at ¶¶ 16-27. Petitioner's extensive criminal record and the fact that he had committed the charged offense while under a sentence of supervised release, along with his career offender status, resulted in his criminal history category designation of VI. Id. at ¶¶ 29-39. At a total offense level of 29 and a criminal history category of VI, the applicable range

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from the Sentencing Guidelines is 151 to 188 months. Id. at 15. The PSR recommended a sentence of 151 months, at the bottom end of the Guidelines range. Id. at 15-16.

Petitioner was sentenced by this Court on February 23, 2015. Doc. 21; Sentencing Transcript ("Sent. Tr."). At sentencing, Petitioner affirmed that he had reviewed the PSR with Ms. Sasso. Sent. Tr. at 1:11-13. Furthermore, Ms. Sasso argued...