Hernandez v. United States, CAUSE NO. SA-14-CA-644-DAE (PMA)
| Decision Date | 01 December 2014 |
| Docket Number | CAUSE NO. SA-14-CA-644-DAE (PMA) |
| Court | U.S. District Court — Western District of Texas |
| Parties | OZVALDO HERNANDEZ, BOP No. 99180-280, Movant, v. UNITED STATES OF AMERICA, Respondent. |
[SA-12-CR-449(2)-DAE]
On this date came on to be considered the motion of movant to vacate, set aside, or correct his sentence pursuant to Title 28 U.S.C. Section 2255 (ECF no. 215) and movant's memorandum of law in support (ECF no. 216), both filed July 14, 2014. The Court having reviewed the motion and memorandum is of the opinion that movant's assertions of ineffective assistance by his trial counsel and allegations that his plea agreement was breached by the government are refuted by the record and warrant neither relief under Section 2255 nor a Certificate of Appealability from this Court. Because movant's claims are refuted by the record, movant is not entitled to an evidentiary hearing before this Court.
Pursuant to a written plea agreement (ECF no. 160),1 movant entered a guilty plea on April 23, 2013 before the Magistrate Judge to Count One of a superseding information charging movant with conspiracy to possess with intent to distribute 100 or more kilograms of a mixture or substancecontaining a detectable amount of marihuana.2 The Magistrate Judge issued a Memorandum and Recommendation finding, in pertinent part, that movant was competent to stand trial, movant consented to plead guilty before the Magistrate Judge, movant fully understood the nature of the charge and penalties, movant understood his constitutional and statutory rights and desired to waive them, movant's guilty plea was freely, knowingly, and voluntarily made, and there was a factual basis for the movant's guilty plea. ECF no. 168. Movant filed no objections to the Magistrate Judge's findings in her Memorandum and Recommendation. In an Order issued April 24, 2014 (ECF no. 171), this Court accepted the Magistrate Judge's Memorandum and Recommendation and accepted movant's guilty plea, once more advising movant of his right to file objections to the Magistrate Judge's factual findings and conclusions. Movant thereafter filed no objections to the Magistrate Judge's factual findings.
On July 22, 2013, movant came before this Court for sentencing. At movant's sentencing hearing, (1) the Court entertained and overruled movant's objections to the portion of movant's PSIR calculating the quantity of marijuana involved in movant's conspiracy offense, (2) the Court concluded (consistent with movant's PSIR) that movant was a significant player in the marijuana importation conspiracy in question, (3) movant withdrew several other objections movant had previously filed to movant's PSIR, and (4) the Court imposed a sentence of 110-months incarceration to be followed by a four-year term of supervised release and directed movant to paya one hundred dollar special assessment.3 Consistent with the waivers contained in his written plea agreement, movant did not appeal from his conviction or sentence.
On July 14, 2014, movant filed a pro se motion to vacate, set aside, or correct his sentence pursuant to Title 28 U.S.C. Section 2255 and a memorandum of law in support of same (ECF nos. 215 & 216). As grounds for relief, movant's motion to vacate and brief in support include arguments that (1) his plea agreement was breached when his PSIR converted the 654 Pounds of marijuana included in the factual basis for movant's guilty plea into 654 Kilograms of marijuana, thereby increasing movant's sentence substantially, (2) his trial counsel rendered ineffective assistance at sentencing by (a) failing to object to the erroneous conversion of 654 Pounds of marijhuana into 654 Kilograms of marihuana in movant's PSIR, (b) withdrawing movant's objections to multiple alleged errors in movant's PSIR (including suggestions movant played a leadership or managerial role in the offense and the drug quantity relevant to movant's offense was 654 Kilograms of marijuana), (c) failing to preserve objections to the breach of movant's plea agreement ( the quantity of marijuana involved in movant's offense indicated in movant's plea agreement which differed from the quantity set forth in movant's PSIR), (d) failing to object to the absence of a factual basis for the conspiracy charge against movant, and (e) failing to move to withdraw movant's guilty plea once the government breached movant's plea agreement, (3) the trial court sentenced movant without inquiring whether movant personally agreed to the withdrawal of movant's objections to alleged errors in movant's PSIR, (4) the trial court made erroneous references at sentencing to drug cartels, drug trafficking along the border, and the Zeta's which were without factual foundation in theevidence before the Court, (5) the trial court failed to inform movant of his right to appeal his conviction and sentence, (6) movant's guilty plea was fraudulently induced by the Government's misrepresentation that movant's offense involved a quantity of 654 Pounds of marijuana when the Government's PSIR indicated the drug quantity as 654 Kilograms of marijuana, the latter figure being without factual support in the record, in violation of the rules announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013), (7) his trial court erred in accepting movant's guilty plea without first ascertaining (a) whether movant understood the nature of the charge against movant (including the drug quantity) and (b) the existence of a factual basis for an agreement between movant and another person, i.e., an essential element of movant's conspiracy charge, and (8) movant's guilty plea was fraudulently induced by promises from the prosecution that movant's offense level would be calculated based upon 654 pounds of marijuana, i.e., a quantity within the range of 100 to 400 kilograms.
On October 24, 2014, the government filed its response to movant's motion to vacate, pointing out (1) movant's plea agreement on its face includes movant's admission that he conspired to possess with intent to distribute more than 100 kilograms of marijuana, (2) movant understood the mandatory minimum and maximum possible sentence he could receive as a result of his guilty plea, (3) movant's plea agreement expressly informed movant the sentencing court was not bound by any representations made by any party regarding the scope of movant's offense or any estimate of movant's sentencing range movant may have received from any person, (4) the factual basis for the conspiracy charge against movant appeared within movant's plea agreement itself, (5) movant's guilty plea was voluntarily, intelligently, and knowingly entered and waived all non-jurisdictional claims asserted by movant, (6) movant's complaints about the performance of his trial counsel atsentencing did not establish a violation of movant's right to effective assistance of counsel at the time movant's entered his guilty plea months before movant's sentencing, (7) movant's plea agreement was not breached by the calculation of drug quantity contained in movant's PSIR as nowhere in movant's plea agreement was the specific quantity of marijuana involved in movant's offense identified or limited for sentencing purposes, and (8) the affidavit of movant's trial counsel attached to the government's response refuted movant's assertions of ineffective assistance. ECF no. 218.
Section 2255 provides relief for a convicted federal criminal defendant who can establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack. United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995); United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992), cert. denied, 504 U.S. 962 (1992); 28 U.S.C. § 2255.
Not all complaints about a sentence may be brought initially through a Section 2255 motion. Section 2255 relief is reserved for errors of constitutional dimension and other injuries that could not have been raised on direct appeal and, if left unaddressed, would result in a complete miscarriage of justice. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996); United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). Section 2255 does not reach errors not of a constitutional or jurisdictional magnitude that could have been reached by a direct appeal. United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997); Payne,99 F.3d at 1281; Seyfert, 67 F.3d at 546. "Nonconstitutional claims that could have been raised in a direct appeal, but were not, may not be asserted in a collateral proceeding." Payne, 99 F.3d at 1281.
A defendant may not raise an issue, regardless of whether constitutional or jurisdictional in nature for the first time on collateral review without showing both "cause" and "actual prejudice" resulting from the error. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000); Cervantes, 132 F.3d at 1109; Gaudet, 81 F.3d at 589.
An alleged breach of a plea agreement may be raised on direct appeal despite an express waiver of appellate rights. United States v. Purser, 747 F.3d 284, 289 (5th Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 403 (2014); United States v. Long, 722 F.3d 257, 260 n.2 (5th Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1514 (2014); United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 1126 (2012).
Insofar as movant argues his plea agreement was breached when the Probation Officer prepared a pre-sentence investigative...
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