Mendez v. United States
| Decision Date | 17 July 2020 |
| Docket Number | CRIMINAL INDICTMENT NO. 1:16-CR-0341-MHC-CMS-6,CIVIL FILE NO. 1:19-CV-4539-MHC-CMS |
| Parties | FRANCO TEZA MENDEZ, Movant, v. UNITED STATES, Respondent. |
| Court | U.S. District Court — Northern District of Georgia |
Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered in this Court under the above criminal docket number. The matter is before the Court on the motion to vacate [Doc. 394], Respondent's response [Doc. 460], and Movant's reply [Doc. 498]. For the reasons discussed below, Movant's motion to vacate and a certificate of appealability (COA) are due to be denied.
In October 2016, Movant was charged by complaint with two drug crimes. [Doc. 1]. In December 2016, the grand jury for the Northern District of Georgia brought a superseding indictment against Movant and co-conspirators Paola Valenzuela Arevalo, Herbert Jonathan Castillo Juarez, Clifford Waldthausen, Luis Sarti Gomez, and Angel Bojorquez-Amaya. [Doc. 49]. By the end of January 2017, Waldthausen, Gomez, and Bojorquez-Amaya all had entered guilty pleas. [Docs. 72, 80, 86]. In March 2017, the grand jury for the Northern District of Georgia, brought a second superseding indictment against Movant and co-conspirators Arevalo, Juarez, and Alden Lougee. [Doc. 93]. The grand jury charged Movant on the following four counts: (1) conspiring with, among others, Bojorquez-Amaya to possess with the intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(i) and (b)(1)(B(ii)(II); (2) conspiring with, among others, Bojorquez-Amaya to knowingly and intentionally import heroin and cocaine into the United States, in violation of 21 U.S.C. §§ 963 and 960(b)(1)(A) and (b)(2)(B); (3) aided and abetted by others, including Bojorquez-Amaya, possessing with intent to distribute heroin and cocaine, in violation on 21 U.S.C. § 841(a)(1) and (b)(1)(A)(i) and 18 U.S.C. § 2; and (4) aided and abetted by others, including Bojorquez-Amaya, knowingly and intentionally importing heroin and cocaine into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a) and (b)(1)(A) and 18 U.S.C. § 2. [Doc. 93at 1-4].1 On June 6, 2017, Movant, represented by Sarah Timmers, pleaded guilty to all counts. [Doc. 138; Doc. 260].
In the Presentence Investigation Report (PSR), the probation officer calculated a base offense level of thirty and a two-level increase for Movant's aggravating role in the offense, U.S.S.G. § 3B1.1(c), with no acceptance-of-responsibility decrease under U.S.S.G. § 3E1.1(a) or safety-valve decrease under U.S.S.G. § 2D1.1(b)(17) (2017).2 [Doc. 242 at 34-36, ¶¶ 85-90]. Based thereon, Movant's total offense level was thirty-two, which yielded a guideline range of 121 to 151 months, subject to a statutory ten-year mandatory minimum. [Id. at 44]. Movant initially objected to the PSR, but later withdrew his objections because he had, through new counsel, Dennis Craig O'Brien, entered into an oral agreement with the Government to withdraw objections in exchange for the Government's agreement to recommend a 121-month sentence, at the low end of the guideline range. [Doc. 208 at 1]. The Court accepted the recommendation. [Doc. 261 at 18]. The Court found that Movant's total offenselevel was thirty-two, with a guideline range of 121 to 151 months,3 with a ten-year mandatory minimum, and sentenced Movant to a 121-month term of imprisonment on each count, to run concurrently. [Id. at 11-12, 17-18].
Movant appealed, and counsel filed an Anders brief4 that raised as potential issues the Court's assigning Movant an aggravating-role increase, which foreclosed a safety-valve decrease, and the Court's failure to grant a decrease for acceptance of responsibility. [Doc. 460-11 at 16]. In reply to the Anders brief, Movant argued that, to the extent the issues were barred due to counsel's waiver of objections, counsel had waived the issues in error. [Doc. 460-12 at 4]. On January 9, 2019, the Eleventh Circuit Court of Appeals found no arguable issues of merit on direct appeal and affirmed the judgment against Movant. [Doc. 460-13 at 3; Doc. 321].5
Movant now seeks collateral relief under § 2255. [Doc. 394]. Movant raises two grounds for relief: (1) ineffective assistance of counsel for the withdrawal of objections to the PSR, specifically in regard to the aggravating-role increase, lack of a safety-valve decrease, and lack of an acceptance-of-responsibility decrease,6 and(2) ineffective assistance of counsel for failing to challenge Movant's alleged responsibility for Bojorquez-Amaya's distribution of heroin. [Id. at 4-5; Doc. 394-1 at 2-8].
Section 2255 of Title 28 allows a district court to vacate, set aside, or correct a federal sentence that was imposed in violation of the Constitution or laws of the United States or was imposed by a court without jurisdiction, exceeds the maximum sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. The § 2255 movant bears the burden to establish his or her right to collateral relief, Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015), which is limited.
"Once [a] defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted," and "to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 164, 166 (1982). Section 2255 relief "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) (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted). A constitutional claim of ineffective assistance of counsel, which generally cannot be fully litigated on direct appeal, is properly raised on collateral review in order to allow for adequate development and presentation of relevant facts. Massaro v. United States, 538 U.S. 500, 505-09 (2003).
"The district court is not required to grant a petitioner an evidentiary hearing if the § 2255 motion 'and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (quoting § 2255(b)). That is the case here, as shown in the discussion below.
In his grounds for relief, Movant asserts ineffective assistance of counsel, to which Strickland v. Washington, 466 U.S. 668 (1984), applies. A criminal defendant possesses a Sixth Amendment right to "reasonably effective" legal assistance. Id. at 687. To show constitutionally ineffective assistance of counsel, a movant must establish (1) that counsel's representation was deficient and (2) that counsel's deficient representation prejudiced the movant. Id. at 690-92. The Court may resolve an ineffective assistance claim based on either of the above prongs. Pooler v. Sec'y, Fla. Dep't of Corr., 702 F.3d 1252, 1269 (11th Cir. 2012).
Under the first prong, a movant must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. "Because we presume counsel was competent, [the movant] 'must establish that no competent counsel would have taken the action that his counsel did take.'" Dell v. United States, 710 F.3d 1267, 1281 (11th Cir. 2013) (quoting Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc)). Under the second prong, a movant Strickland, 466 U.S. at 694. The habeas petitioner or § 2255 movant has the burden of affirmatively proving prejudice, and a "conceivable effect" on the proceedings does not show prejudice. Wood v. Allen, 542 F.3d 1281, 1309 (11th Cir. 2008) (quoting Strickland, 466 U.S. at 693).
Movant's statement on acceptance of responsibility included the following: (1) that he had accepted a job as a drug courier swallowing drugs because he lost his job7 and was dealing with addiction issues, (2) that Bojorquez-Amaya asked Movant for a job or job referral and Movant initially did not trust Bojorquez-Amaya and did not help him, (3) that Movant subsequently "relented and remembered some people who were looking for individuals to work" and gave Bojorquez-Amaya theirtelephone number, (4) that, after Bojorquez-Amaya called and obtained the job, he contacted Movant to inform he was happy for the job and had a Visa, and (5) that Bojorquez-Amaya sent Movant a photograph of the Visa after Movant jokingly advised Bojorquez-Amaya that he did not believe he had a Visa. [Doc. 242 at 33, ¶ 81]. Movant further stated that he met "Mello" at a gym and that Mello introduced Movant to the people with drugs who employed Movant as a courier. [Id. at 34, ¶ 82].
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