Fernandez-Leyva v. United States

• Decision Date: 17 December 2014
• Docket Number: Civil Action No. 3:13cv42-WKW (WO)
• Parties: ORLANDO FERNANDEZ-LEYVA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Alabama

ORLANDO FERNANDEZ-LEYVA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action No. 3:13cv42-WKW (WO)

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION

December 17, 2014

RECOMMENDATION OF THE MAGISTRATE JUDGE

This matter is before the court on a pro se motion by Orlando Fernandez-Leyva ("Fernandez-Leyva") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.

I. INTRODUCTION

On June 3, 2011, a jury found Fernandez-Leyva guilty of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following a sentencing hearing on October 4, 2011, the district court sentenced him to 60 months' imprisonment and 10 years' supervised release. Fernandez-Leyva appealed to the Eleventh Circuit, which affirmed his conviction and sentence on June 28, 2012.¹ See United States v. Fernandez-Leyva, 482 Fed. App'x 417 (11th Cir. 2012).

On January 14, 2013, Fernandez-Leyva filed this § 2255 motion asserting:

1. His 60-month sentence of imprisonment was based on facts not proved to the jury beyond a reasonable doubt.

2. His 10-year term of supervised release exceeded the authorized statutory maximum and was an unwarranted upward departure under the Sentencing Guidelines.

3. The imposition of 235 days of pretrial home detention constituted "official detention" for which he should receive credit against his term of imprisonment.

4. His counsel rendered ineffective assistance by (a) failing to challenge the district court's imposition of a sentence of imprisonment in excess of that authorized by the jury's verdict and (b) failing to argue his 10-year term of supervised release exceeded the authorized statutory maximum and was an unwarranted upward departure under the Sentencing Guidelines.

Doc. No. 1 at 4-8; Doc. No. 1-1 at 2-14.²

After consideration of Fernandez-Leyva's § 2255 motion, the submissions supporting and opposing the motion, and the record, the court concludes that an evidentiary hearing is not required and that, under Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.

II. DISCUSSION

A. General Standard of Review

Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner isentitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232-33 (11th Cir. 2004) (citations omitted).

B. Substantive Claims Not Raised on Direct Appeal

In his § 2255 motion, Fernandez-Leyva raises several substantive claims not raised on direct appeal. See Doc. No. 1 at 5-8; Doc. No. 1-1 at 1-2, 7-14. Ordinarily, if an available claim is not advanced on direct appeal, it is deemed procedurally barred in a § 2255 proceeding. See Mills v. United States, 36 F.3d 1052, 1055-56 (11th Cir. 1994); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). A petitioner can avoid this procedural bar by showing both cause for failing to raise the claim on direct appeal and actual prejudice arising from that failure. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Mills, 36 F.3d at 1055.

Fernandez-Leyva does not specifically assert cause for his failure to raise his substantive claims on appeal. However, two of his substantive claims - that his sentence ofimprisonment was based on facts not proved to the jury and that his 10-year term of supervised release exceeded the statutory maximum and was an unwarranted upward departure under the Sentencing Guidelines - underlie, and are inextricably linked with, the allegations of ineffective assistance of counsel set forth in his § 2255 motion. See Doc. No. 1 at 4-7; Doc. No. 1-1 at 1-2, 4-8, 10-14. Meritorious allegations of ineffective assistance of counsel may satisfy the cause exception to a procedural bar. See Greene, 880 F.2d at 1305. Under these circumstances, the court will review Fernandez-Leyva's claims that his sentence was based on facts not proved to the jury and his term of supervised release exceeded the statutory maximum and improperly departed from the Sentencing Guidelines in the context of his claims of ineffective assistance of counsel, which are discussed below in this Recommendation.³

Credit for Pretrial Home Detention

Fernandez-Leyva also argues that imposition of pretrial home detention for a total of 235 days constituted "official detention" under 18 U.S.C. § 3585(b)⁴ for which he shouldreceive credit against his term of imprisonment. See Doc. No. 1 at 8; Doc. No. 1-1 at 3, 10. This claim was not raised on direct appeal and is not presented in Fernandez-Leyva's § 2255 motion in terms of ineffective assistance of counsel. Fernandez-Leyva asserts no cause for his failure to raise this claim on direct appeal. Thus, assuming - without so finding - this claim is of the sort that may be presented in a § 2255 motion, it is procedurally barred.⁵ In any case, Fernandez-Leyva's argument is squarely foreclosed by Reno v. Koray, 515 U.S. 50 (1995), where the Supreme Court held that "credit for time spent in 'official detention' under [18 U.S.C.] § 3585(b) is available only to those defendants who were detained in a 'penal or correctional facility,' [18 U.S.C.] § 3621(b), and who were subject to [the] BOP's control." 515 U.S. at 58. Fernandez-Leyva was not detained in a penal or correctional facility or subject to the control of the BOP during his pretrial home detention. Therefore, under Koray, his pretrial home detention did not constitute "official detention" within the meaning of 18 U.S.C. § 3585(b) and he is not entitled to the sentencing credit he seeks. See Rodriguez v. Lamer, 60 F.3d 745, 747-48 (11th Cir. 1995) (following Koray and holding time spent underhouse arrest is not "official detention" under § 3585(b)).

C. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 689. Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

Scrutiny of counsel's performance is "highly deferential," and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will "avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks and brackets omitted). "Given the strong presumption in favor of competence, the petitioner's burden of persuasion - though the presumption is not insurmountable - is a heavy one." Id.

As noted, under the prejudice component of Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" Strickland, 466 U.S. at 694. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Theprejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.

Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can "establish ... that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.... Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

1. Failure to Challenge Sentence in Excess of That Authorized by Jury's Verdict

Fernandez-Leyva contends his counsel rendered ineffective assistance by failing to challenge the district court's imposition of a sentence of imprisonment in excess of that authorized by the jury's verdict.⁶ See Doc. No. 1 at 4-7; Doc. No. 1-1 at 2, 4-8, 10-14.

In this regard, Fernandez-Leyva seems to argue that his counsel should have urged the sentencing court, in determining his guidelines...