Linares-Andrade v. United States, EP-11-CV-544-PRM
| Decision Date | 28 March 2012 |
| Docket Number | EP-10-CR-2533-PRM,EP-11-CV-544-PRM |
| Parties | RICARDO LINARES-ANDRADE, Fed. Reg. No. 65926-280, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Texas |
On this day, the Court considered Movant Ricardo Linares-Andrade's (Linares) "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (ECF No. 27)1 [hereinafter Motion], filed on December 19, 2011, and the United States of America's (the Government) "Response to Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (ECF No. 34) [hereinafter Response], filed on March 8,2012 in the above-captioned cause. In his Motion, Linares challenges his conviction and fourty-six month sentence imposed by the Court for illegal reentry, claiming that his retained counsel provided constitutionally ineffective assistance. After reviewing the record and for the reasons discussed below, the Court concludes that Linares has failed to establish his entitlement to § 2255 relief. It will accordingly deny his Motion and dismiss his civil cause with prejudice. Additionally, the Court will deny Linares a certificate of appealability.
On September 6,2010, Linares attempted to enter the United States at the Paso Del Norte Port of Entry in El Paso, Texas. Plea Agreement, Oct. 27, 2010, ECF No. 18. He "presented a valid Resident Alien Card, Form 1-551, bearing the name and photograph of another and claimed to be that person to Customs and Border Protection Officer Adrian McCann." Id. "It was determined through official records of the Department of Homeland Security and an interview with [Linares] that he was an alien to the United States and a citizen and native of Mexico." Id. Immigration records further reflected that Linares had been previously removed from the United States on November 8,2008. Id.
Subsequently, the Government filed an indictment, charging Linares with illegal re-entry in violation of 8 U.S.C. § 1326 and false personation in immigration matters in violation of 18 U.S.C. § 1546(a). Indictment, Sept. 22,2010, ECF No. 9. Also on September 22,2010, the Government filed its "Notice of Intent to Seek Increased Statutory Penalty," notifying Linares that it would "seek the increased penalties provided by Title 8, United States Code, Section 1328(b)(1)." ECF No. 10.
On October 27,2010, Linares filed his "Plea Agreement" with the Court, wherein he pled guilty to count one, illegal re-entry. ECF No. 18. At the October 28,2010 hearing, the Court accepted the Plea Agreement and Linares's guilty plea. ECF Nos. 19, 21. Then, on January 6, 2011, the Court sentenced Linares to forty-six months' imprisonment, three years' supervised release, and imposed a $100 special assessment. Minute Entry, ECF No. 24. Linares did not take an appeal from this judgment but instead filed the instant Motion on December 19, 2011.
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). To receive relief pursuant to § 2255, the movant must demonstrate (1) that the sentence imposed violated the Constitution or laws of the United States, (2) that the sentencing court was without jurisdiction to impose the sentence, (3) that the sentence was in excess of the maximum authorized by law, or (4) that the sentence is otherwise subject to collateral attack. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995).
The United States Constitution's Sixth Amendment guarantees accused persons the right to the assistance of counsel for their defense in all criminal prosecutions. U.S. Const, amend. VI. Moreover, "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). "[I]neffective assistance claims are ordinarily brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of direct appeal." Gaudet, 81 F.3d at 589 n.5. To merit relief on an ineffective assistance of counsel claim, a movant must demonstrate both (1) that his "counsel's performance was deficient," and (2) that "the deficient performance prejudiced the defense." See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. Id. at 687( that, unless a defendant demonstrates both elements, the sentence cannot have resulted from a breakdown in the adversary process); Carter v. Johnson, 131 F.3d 452,463 (5th Cir. 1997) .
The test's performance prong centers on whether counsel's assistance was reasonable, considering all the circumstances at the time of counsel's conduct. Strickland, 466 U.S. at 688. In order to obtain relief, a movant must establish "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.
However, counsel has a wide range of reasonable professional discretion. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,101 (1955)). A deficiency in counsel's performance, even if professionally unreasonable, does not equal ineffective assistance of counsel; the movant must also demonstrate actual prejudice. Id. at 691-92. The test's prejudice prong requires the movant to demonstrate with Id. at 694.
A court reviews pro se pleadings under a less stringent standard than those drafted by attorneys, and such pleadings are entitled to a liberal construction that includes all reasonable inferences which can be drawn from them. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (). Additionally, when the complaint is filedpro se, a court must observe its duty to construe the allegations liberally and more permissively. S.E.C. v AMX, Intern 7, Inc., 1 F.3d 71, 75 (5th Cir. 1993). Thus, "[u]nless the frivolousness of a claim is facially apparent, it is incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merit or lack of same." Green v. McKaskle, 788 F.2d 1116,1120 (5th Cir. 1986) (internal quotations omitted).
At the same time, however, parties proceeding pro se are still required to provide sufficient facts in support of their claims. United States v. Pineda, 988 F.2d 22,23 (5th Cir. 1993). Even under the rule of liberal construction, "mere conclusory allegations on a critical issue are insufficient." Id. (citing United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989))
In his Motion, Linares argues that he received ineffective assistance of counsel when his attorney: (1) "failed to investigate [his] criminal history;" (2) "failed to object to the charges [and] the enhancements ... and [failed to] later challenge the conviction by applying for a direct appeal of the judg[ment];" and (3) "failed to object to the base offense level as well as the criminal history category."2 Mot. 4, 7, 8. Linares also charges that he was wrongfully charged for illegal re-entry, when he should have been charged with false personation, a charge that the prosecution declined to pursue as part of the terms of the plea agreement.
Linares claims that his attorney Mot. 4.
Whenever a petitioner alleges that his attorney failed to investigate the case, the "petitioner must allege with specificity what the investigation would have revealed and how it would have changed the outcome of the trial." St. Aubin v. Quarterman, 470 F.3d 1096,1101 (5th Cir. 2006) (citing Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005)); see also United States v. Green, 882 F.2d 999,1002-03 (5th Cir. 1989) ()
As to the second prong, Linares does spend substantial time in his Motion explaining how an adequate investigation would have changed the outcome of the trial. He states, several times, that his sentencing range would have been dramatically lower, had the sixteen-level enhancement been eliminated. See, e.g., Mot. 46 ().
However, Linares's Motion does not satisfy the first prong of the St. Aubin requirement because he has not alleged with specificity what the investigation would have revealed. Instead, he generally alleges that he did not violate the provisions of 8...
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