Gonzalez v. United States

• Decision Date: 05 January 2023
• Docket Number: 22-CV-22940-RAR,20-CR-20155-RAR-5
• Parties: JONNATHAN JESUS GONZALEZ, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

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JONNATHAN JESUS GONZALEZ, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 22-CV-22940-RAR

No. 20-CR-20155-RAR-5

United States District Court, S.D. Florida

January 5, 2023

ORDER DENYING IN PART MOTION TO VACATE AND GRANTING EVIDENTIARY HEARING

RODOLFO A. RUIZ II UNITED STATES DISTRICT JUDGE.

THIS CAUSE comes before the Court on Movant Jonnathan Jesus Gonzalez's Motion to Vacate under 28 U.S.C. § 2255. See Motion to Vacate (“Mot.”) [ECF No. 1]. Respondent filed a Response to the Motion see Response (“Resp.”) [ECF No. 7], and Movant filed a Reply to that Response, see Reply [ECF No. 11]. Having reviewed the pleadings, Movant's criminal docket, and the applicable law, the Court finds that Movant is entitled to an evidentiary hearing limited to the ineffective assistance of counsel claim he raises in Ground Two; all other claims, however, are DENIED.

PROCEDURAL HISTORY

The Government accused Movant, along with eight other codefendants, of participating in a conspiracy to “unlawfully enrich themselves by obtaining fraudulent loans secured by properties by falsely representing that they were the owners of the properties and using the proceeds for their own personal use and benefit and to further the fraud.” Superseding Indictment, United States v Mendez, et al., No. 20-CR-20155 (S.D. Fla. Feb. 4 2021), ECF No. 61 at 5. Movant was indicted on six counts: conspiracy to commit bank fraud and wire fraud, in violation of 18 U.S.C. § 1349 (Count 1); two counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 4 and 7); one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a) (Count 12); one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count 22); and one count of money laundering, in violation of 18 U.S.C. § 1957 (Count 24). See id. at 1-19.

On August 25, 2021, Movant entered into a plea agreement with the Government. See Plea Agreement, United States v. Mendez, et al., No. 20-CR-20155 (S.D. Fla. Aug. 25, 2021), ECF No. 176. Movant agreed to “plead guilty to Counts 1 and 12 of the superseding indictment,” in exchange for the Government dismissing Counts 4, 7, 22, and 24 of the Superseding Indictment. Id. at 1. Movant also executed a factual proffer where he agreed that the Government could have proven the following facts, among others, beyond a reasonable doubt:

In or around October 2019, the Defendant agreed with Carlos Rafael Castaneda Mendez, Genesis Martusciello Gimenez, and Katherine Hansen that Hansen would impersonate M.F.L.M., whom the Defendant knew was a real individual, to open bank accounts and fraudulent obtain loans on [M.F.L.M.'s property]. Hansen subsequently provided a photograph of herself to be used to make a false and fraudulent passport bearing the name and Cedula number [a Venezuelan national identifying number] of M.F.L.M. (the “Fraudulent Venezuelan Passport”). On or about October 31, 2019, the Defendant sent via WhatsApp message to Hansen a forwarded message he had received that included a photograph of the Fraudulent Venezuelan Passport that was produced for Hansen to impersonate M.F.L.M. in furtherance of the fraud.

On or about November 6, 2019, Hansen used the Fraudulent Venezuelan Passport to falsely and fraudulently represent that she was M.F.L.M. to open a personal checking account in the name of M.F.L.M. at a TD Bank branch in Miami, Florida.

[....]

Subsequently, on or about December 5, 2019, the Defendant provided information via WhatsApp messages to Hansen to be used by Hansen in making various wire transfers from the fraudulent [bank account], including, among others, a wire in the amount of $145,000.00 to an account in the name of the Defendant.

In or around January 2020, following default on the initial fraudulent loan on the [property], the Defendant agreed with Castaneda, Gimenez, and Hansen that Hansen would again impersonate M.F.L.M. to obtain another fraudulent loan on the [property] that would refinance the existing $1,950,000.00 fraudulent loan, pay off the initial private lender, and provide a cash payout into the fraudulent [bank account].

[....]

On or about March 6, 2020, the Defendant drove Hansen to a TD Bank branch, located at 1208 SW 8th Street, Miami, Florida, so that Hansen could initiate various wire transfers of the fraudulent loan proceeds from the fraudulent [bank account]. Once inside, Hansen approached a TD Bank employee and produced the Fraudulent Venezuelan Passport and a fraudulent Venezuelan driver's license bearing the name of M.F.L.M., but with a photograph of Hansen, while attempting to make a domestic wire transfer in the amount of $305,000.00 from the fraudulent [bank account]. At that time, however, the fraudulent [bank account] did not have sufficient funds, as the pending incoming wire transfer . . . from the fraudulent loan refinancing had not yet cleared.

The TD Bank employee subsequently notified an off-duty law enforcement officer that was on assignment at the bank about Hansen's attempted wire transfer. The TD Bank employee further told the off-duty law enforcement officer that he/she had observed Hansen arrive at the bank in a white Range Rover with a male driver.

The off-duty law enforcement officer thereafter approached a white Range Rover parked outside. The Defendant was the driver and sole occupant. During the encounter, law enforcement observed a Florida driver's license, bearing Hansen's true name and photograph that matched Hansen, located in the cup holder of the vehicle in plain view. Law enforcement asked the Defendant to whom the identification belonged, and the Defendant advised that it belonged to his girlfriend who was inside the bank.

Law enforcement subsequently detained Hansen, who provided law enforcement with her true name. A search of Hansen revealed the Fraudulent Venezuelan Passport.

M.F.L.M. did not authorize Hansen or anyone else to use her name, Cedula number, or any other personal identifying information to open the accounts at TD Bank or apply for the loans on the [property].

The Defendant agrees that the funds formerly on deposit in the [bank account], which were previously seized by the United States, represent the proceeds of the scheme described.

Factual Proffer, United States v. Mendez, et al., No. 20-CR-20155 (S.D. Fla. Aug. 25, 2021), ECF No. 177 at 1-5.

Movant's sentencing hearing took place on October 18, 2021. In accordance with Movant's plea agreement, the Court adjudicated Movant guilty of Counts 1 and 12 and sentenced Movant to a total term of 44 months-20 months as to Count 1 followed by a consecutive term of 24 months as to Count 12. See Judgment, United States v. Mendez, et al., No. 20-CR-20155 (S.D. Fla. Oct. 20, 2021), ECF No. 259 at 1-2. Movant did not appeal his conviction or sentence.

STANDARD OF REVIEW

Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on a final judgment, pursuant to 28 U.S.C. § 2255, are extremely limited. A prisoner is only entitled 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(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). Thus, relief under § 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 (11th Cir. 2004) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). If a court finds a claim under § 2255 valid, the court “shall vacate and set the judgment aside shall discharge the prisoner or resentence him or grant a new trial or correct the sentence.” 28 U.S.C. § 2255(b). The § 2255 movant “bears the burden to prove the claims in his § 2255 motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015).

The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel for his defen[s]e.” U.S. Const. amend. VI. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, the movant must demonstrate “that (1) his counsel's performance was deficient and ‘fell below an objective standard of reasonableness,' and (2) the deficient performance prejudiced his defense.” Raleigh v. Sec'y, Fla. Dep't of Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687-88). “Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland.” Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009).

Regarding the deficiency prong, “a petitioner must establish that no competent counsel would have taken the action that his counsel did take” during the proceedings. Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). If “some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial[,]” counsel did not perform deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quoting White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992)).

As for the second prong, “a defendant is prejudiced by his counsel's deficient performance if ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been...