Lopez-Vera v. United States, 1:12CV55

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Writing for the CourtThomas D. Schroeder United States District Judge
Docket Number1:12CV55,1:09CR226-1
Decision Date15 April 2015




April 15, 2015


Pro se Petitioner Ricardo Lopez-Vera moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 35.)1 He had pled guilty to illegally re-entering the country after his conviction for a felony under 8 U.S.C. §§ 1326(a) and (b)(1) and, on May 7, 2010, was sentenced to eighty-seven months of imprisonment for the illegal re-entry conviction and a consecutive sentence of eighteen months of imprisonment for a supervised release revocation as to a prior conviction under violation of § 1326(a). (Docs. 17, 21, 28, 30.) His appeal was unsuccessful. See United States v. Lopez-Vera, 432 F. App'x 244 (4th Cir. 2011).

Following his appeal, Lopez-Vera filed his current § 2255 motion, a supporting brief, and a "supplement" to his motion. (Docs. 35, 36, 38.) His § 2255 motion raised two grounds for relief, and his supplement raised an additional ground. (Docs.

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35, 38.) The United States filed a response (Doc. 45), and Lopez-Vera filed a reply (Doc. 51), a "Status Report and Motion to Supplement with New Case Citation" (Doc. 52), and a second "Status Report" (Doc. 53). The court allowed Lopez-Vera to amend his § 2255 motion to raise another ground for relief pursuant to Rule 15(a) of the Federal Rules of Civil Procedure and required the United States to respond to his subsequent "status reports." (Doc. 54.) The United States then filed a supplemental response. (Doc. 55.) The matter is now ready for consideration.

For the reasons set forth below, Lopez-Vera's motion will be denied.


A petitioner collaterally attacking his sentence or conviction must prove by a preponderance of the evidence that "his sentence or conviction was imposed in violation of the Constitution or laws of the United States, . . . that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack." 28 U.S.C. § 2255; see also Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); Almon v. United States, 302 F. Supp. 2d 575, 579 (D.S.C. 2004). The court construes Lopez-Vera's pro se motions liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Fields v. Attorney Gen. of State of Md., 956 F.2d 1290, 1298 n.20 (4th Cir. 1992). The record supporting the § 2255 motion will be considered in its entirety.

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In total, Lopez-Vera raises five grounds for relief. First, he alleges that he was denied the effective assistance of counsel when his attorney threatened to withdraw as counsel "should [Lopez-Vera] not enter a plea of guilty," or "change[] his mind about pleading guilty, or withdr[a]w his plea of guilty for any reason." (Doc. 35 at 9.) Second, Lopez-Vera contends that he was denied the effective assistance of counsel when his attorney failed to object to the court's characterization of a prior state court felony, resulting in an increased prison sentence. (Id. at 10-11.) Third, citing Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), Lopez-Vera argues that his "initial deportation may not qualify as a prior deportation under 8 U.S.C. § 1326(a), and may no longer support the enhanced term of imprisonment in the underlying prosecution of him under 8 U.S.C. § 1326(b)." (Doc. 38 at 1.) Fourth, he contends that the trial court erred in determining that his prior California burglary conviction justified a guideline enhancement. (Docs. 52, 53.) Finally, he asserts another claim of ineffective assistance for his counsel's failure to move for a downward departure pursuant to U.S.S.G. § 5K3.1. (Doc. 53 at 7-8.) As explained below, each of these claims fails.

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A. Ineffective Assistance of Counsel Claim Relating to Guilty Plea

Lopez-Vera first argues that he was denied the effective assistance of counsel when his attorney threatened to withdraw from representation "should [Lopez-Vera] not enter a plea of guilty, change[] his mind about pleading guilty, or withdr[a]w his plea of guilty for any reason . . . ." (Doc. 35 at 9.) Specifically, he alleges that counsel repeatedly told him that counsel "[did not] want to go up against [the Government] in a lengthy trial with [Lopez-Vera's] past criminal history," and "if [Lopez-Vera] [did not] accept th[e] plea agreement, [counsel] will have to withdraw from the case and [Lopez-Vera] can do whatever it is that [he] want[s] to do on [his] own." (Doc. 36 at 15-16.) Additionally, Lopez-Vera claims that whenever he would try to discuss his past criminal history with counsel, his attorney would become "very angry, distraught, and frustrated" and tell Lopez-Vera why he should "accept the plea agreement that [counsel] worked so hard to negotiate for [him]." (Id. at 16.) Lopez-Vera also claims that his counsel told him that if he failed to accept the plea agreement, "not only are things going to go badly for [him], but [counsel] will withdraw from the case and [Lopez-Vera] will wind up with ten years." (Id. at 16-17.) Lopez-Vera also essentially contends that he knew that his prior State conviction for burglary was insufficient to warrant a sixteen-level guideline

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enhancement, that counsel promised he would contest this issue and oblige the Government to prove the details of the conviction, that counsel failed to follow up on his promise, and that counsel ultimately coerced him into submitting to the erroneous guideline calculation. (Id. at 14-17.) Lopez-Vera alleges that were it not for his attorney's threats to withdraw, he would not have pled guilty. (Id. at 35.)

In order to prove ineffective assistance of counsel, a petitioner must establish, first, that his attorney's performance fell below a reasonable standard for defense attorneys and, second, that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner bears the burden of affirmatively showing both deficient performance and prejudice. See Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). A petitioner is not entitled to a hearing based upon unsupported, conclusory allegations. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), as amended (Aug. 12, 1992) (holding that, in order to obtain an evidentiary hearing, a habeas petitioner must come forward with some evidence that the claim might have merit), abrogation on other grounds recognized by Yeatts v. Angelone, 166 F.3d 255, 261 n.4 (4th Cir. 1999).

When a petitioner raises an ineffective assistance claim in the context of a guilty plea, he must show that the attorney's performance fell below the standard of attorney competence —

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"reasonably effective assistance." Strickland, 466 U.S. at 680. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Second, to show prejudice following a guilty plea, a petitioner must establish that there is a reasonable probability that, but for counsel's allegedly deficient conduct, he would not have pled guilty but would have gone to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). The court must determine whether "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)). This determination is an objective one which is "dependent on the likely outcome of a trial had the defendant not pleaded guilty." Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007).

Where "a defendant is represented by counsel when making his guilty plea, that plea is presumed valid when later attacked in a habeas corpus proceeding. In order to rebut that strong presumption of validity, the defendant must make a factual showing that his plea of guilt was not voluntary and intelligent." United States v. Custis, 988 F.2d 1355, 1363 (4th Cir. 1993) (citation omitted), aff'd, 511 U.S. 485 (1994). "[S]tatements of fact by a defendant in Rule 11 proceedings may not ordinarily be repudiated, and, similarly, findings by a sentencing court in accepting a plea constitute a formidable barrier to attacking the plea." United

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States v. Wilson, 81 F.3d 1300, 1308 (4th Cir. 1996) (quoting United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992)) (quotation marks omitted). "In the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements." United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).

Claims of ineffective assistance of counsel on appeal are also judged through the Strickland test. See Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir. 2008). Appellate counsel need not raise on appeal every non-frivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 752-53 (1983); see also Evans v. Thompson, 881 F.2d 117, 124 (4th Cir. 1989) (declaring that counsel pursued sound strategy when he "determined what he believed to be petitioner's most viable arguments and raised them on appeal"). Ineffective assistance of appellate counsel can be shown by demonstrating that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Bell v. Jarvis, 236 F.3d 149, 180 (4th Cir. 2000) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)).

Here, the record presents a formidable, and indeed insurmountable, barrier to Lopez-Vera's claim. First, under oath

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at his Rule 11 hearing, Lopez-Vera admitted facts that directly controvert the statements in his present motion. (Doc. 28 at 3.) He admitted that he reviewed and understood the indictment, had fully discussed the charges with his attorney, had sufficient time to speak with his...

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