Lopez v. United States

• Decision Date: 24 June 2014
• Docket Number: CRIMINAL ACTION NO. 10-00158-KD-B,CIVIL ACTION NO. 13-00325-KD-B
• Parties: JESUCRISTO LOPEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Alabama

JESUCRISTO LOPEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 13-00325-KD-B

CRIMINAL ACTION NO. 10-00158-KD-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: June 24, 2014

ORDER

This action is before the Court on the Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docs. 111, 112¹) ("the Petition") filed by the Petitioner, Jesucristo Lopez ("Lopez"), a federal prisoner proceeding pro se;² the Government's Response in opposition (Doc. 116); and Lopez's Reply (Doc. 117) to the Response.³ The Petition has been fully briefed and taken under submission. (See Doc. 113). Upon consideration, the Court finds that the Petition is due to be DENIED, that this action is due to be DISMISSED with prejudice, and that Lopez is not entitled to a Certificate of Appealability or to proceed in forma pauperis on appeal.⁴

I. Analysis

a. Petition Claims

Lopez, who pled guilty in his criminal action, now seeks "vacatur of sentence, withdrawal of plea and dismissal of indictment" or, alternatively, "that the plea be amended to...possession of 60 Kg of maraijuana [sic] and the sentence be reduced to time served with all appeal rights preserved." (Doc. 111-1 at 39. See also Doc. 111 at 11).

For the reasons set forth in the Government's response (Doc. 116), which the Court ADOPTS as its own reasoning, the Court finds that Lopez is due no relief on any of the grounds alleged in the Petition. However, Lopez's ineffective assistance of counsel claims as to attorney Michael McDuffie require further discussion.⁵

"A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained." Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). See also United States v. Betancourth, 554 F.3d 1329, 1332 (11th Cir. 2009) (finding that an unconditional guilty plea waives all nonjurisdictional challenges to a defendant's conviction). Stated differently, "a voluntary and intelligent plea made by an accused person, who has beenadvised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508 (1984). Therefore, when a § 2255 motion is filed collaterally challenging convictions obtained pursuant to guilty pleas, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569 (1989). See also Bousley v. United States, 523 U.S. 614, 618 (1998) ("A plea of guilty is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.' (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

"A guilty plea is open to attack on the ground that counsel did not provide the defendant with 'reasonably competent advice.' " Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333 (1980) (quoting McMann[ v. Richardson], 397 U.S. [759,] 770, 90 S. Ct. [1441,] 1448[ (1970)]). The Supreme Court has held "that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Slicker v. Dugger, 878 F.2d 1380, 1381 n.1 (11th Cir. 1989) (per curiam); Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir.1989); McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) (per curiam). In order to obtain relief under the familiar Strickland test, a usual basis of appeal in habeas corpus petitions, a convicted defendant complaining of ineffective assistance of counsel must show: 1) "that counsel's representation fell below an objective standard of reasonableness," and 2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674 (1984); Heath v. Jones, 863 F.2d 815, 821 (11th Cir. 1989) (per curiam); seeFutch v. Dugger, 874 F.2d 1483, 1486 (11th Cir. 1989); Tafero v. Wainwright, 796 F.2d 1314, 1319 (11th Cir. 1986) (per curiam), cert. denied, 483 U.S. 1033, 107 S. Ct. 3277, 97 L. Ed. 2d 782 (1987). Without both showings, a defendant's conviction or []sentence cannot be attributed to "a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Under the first part of the Strickland test, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." 466 U.S. at 688, 104 S. Ct. at 2065. As a corollary, the appropriate standard for evaluating counsel's pretrial investigation is "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 691, 104 S. Ct. at 2066; Foster v. Dugger, 823 F.2d 402, 405 (11th Cir. 1987), cert. denied, 487 U.S. 1241, 108 S. Ct. 2915, 101 L. Ed. 2d 946 (1988); seeGreene v. United States, 880 F.2d 1299, 1306 (11th Cir. 1989), cert.denied, 494 U.S. 1018, 110 S. Ct. 1322, 108 L. Ed. 2d 498 (1990); Futch, 874 F.2d at 1486; see alsoChatom[ v. White], 858 F.2d [1479,] 1485[ (11th Cir. 1988)] ("Counsel's representation must be shown to fall below an objective standard of reasonableness."). The Court also noted that an attorney had an obligation "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. The Court, however, recognized that "[j]udicial scrutiny of counsel's performance must be highly deferential," and that courts should make certain "that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689, 104 S. Ct. at 2065; Foster, 823 F.2d at 405. In order to succeed on an ineffective assistance of counsel claim, a defendant must surmount "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Chatom, 858 F.2d at 1485.

Overcoming the first part of the Strickland test does not guarantee relief. Regarding the second part of the test, the Court has recognized that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Moreover, Hill clarified the Strickland second or "prejudice" requirement in the context of guilty pleas: "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 474 U.S. at 59, 106 S. Ct. at 370; Tahamtani v. Lankford, 846 F.2d 712, 714 (11th Cir. 1988) (per curiam); seeLong v. United States, 883 F.2d 966, 968 n.4 (11th Cir. 1989) (per curiam); Agan v. Dugger, 835 F.2d 1337, 1340 n.6 (11th Cir. 1987), cert. denied, 487 U.S. 1205, 108 S. Ct. 2846, 101 L. Ed. 2d 884 (1988); see alsoHolmes, 876 F.2d at 1553, Slicker v. Wainwright, 809 F.2d 768, 770 (11th Cir. 1987) (These cases were remanded to the district court to determine if accurate, rather than incorrect, information by the defense counsel as to the length of sentence would have changed the defendant's plea.); cf.Betancourt v. Willis, 814 F.2d 1546, 1549 (11th Cir. 1987) (This court affirmed the district court's granting a habeas corpus petition based upon its conclusion that petitioner's plea was not voluntary and that his counsel provided ineffective assistance because the evidence was "uncontroverted that petitioner was completely unaware of the ultimate consequences of his plea because his counsel misrepresented the existence of a sentence reduction agreement."). The Hill court explained the prejudice requirement with specific regard to a defense counsel's alleged failure to investigate potentially exculpatory evidence:

In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentiallyexculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.[⁶]

474 U.S. at 59, 106 S. Ct. at 370; McCoy, 804 F.2d at 1198-99.

The Supreme Court has given finality to guilty pleas by precluding claims of constitutional deprivations occurring prior to entry of the plea. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973); seeTiemens v. United States, 724 F.2d 928, 929 (11th Cir.) (per curiam) ("[A] guilty plea waives all nonjurisdictional defects occurring prior to the time of the plea, including violations of the defendant's rights to a speedy trial and due process."), cert. denied, 469 U.S. 837, 105 S. Ct. 134, 83 L.Ed.2d 74 (1984). The Court allows only challenges to the voluntary and intelligent entry of the plea if a convicted defendant can prove "serious derelictions" in his *1151 counsel's advice regarding the plea. McMann, 397 U.S. at 774, 90 S. Ct. at 1450; Tollett[ v. Henderson], 411 U.S. [258,] 267, 93 S. Ct. [1602,] 1608[ (1973)]; seeHill, 474 U.S. at 56, 106 S. Ct. at 369 ("The longstanding test for determining the validity of a guilty plea is

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