Munoz v. United States, MO: 13-CV-00124-RAJ-DC

• Decision Date: 22 January 2015
• Docket Number: No. MO: 12-CR-00072-RAJ-DC,No. MO: 13-CV-00124-RAJ-DC,MO: 13-CV-00124-RAJ-DC,MO: 12-CR-00072-RAJ-DC
• Parties: RUFINO VILLA MUNOZ, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Texas

RUFINO VILLA MUNOZ, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. MO: 13-CV-00124-RAJ-DC

No. MO: 12-CR-00072-RAJ-DC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND/ODESSA DIVISION

January 22, 2015

REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE

BEFORE THE COURT in this federal habeas corpus proceeding is Movant Rufino Villa Munoz's ("Movant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody ("Motion to Vacate") (Doc. 60), Movant's Memorandum in Support of Motion (Doc. 61), the Government's Response to Movant's Section 2255 Motion to Vacate (Doc. 68), and Movant's Reply to the Government's Response (Doc. 69). After reviewing the parties' submissions, the record of the proceedings before the U.S. District Court in the underlying criminal case, and the applicable case law, the U.S. Magistrate Judge RECOMMENDS, for the reasons set forth below, that Movant's Section 2255 Motion to Vacate, Set Aside or Correct Sentence be DENIED and that this Section 2255 proceeding be DISMISSED. (Doc. 60).

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

On February 22, 2012, a federal Grand Jury sitting in the Midland/Odessa Division of the Western District of Texas returned a one-count Indictment charging Movant with being a felon in possession of a firearm, in violation of Title 18, United States Code, Section 922(g)(1). (Doc. 12 at 1). On April 23, 2012, Movant entered a guilty plea to Count One of the Indictment before the undersigned Magistrate Judge. (Doc. 25). As part of the oral factual basis supporting his plea, Movant admitted that he fired a shotgun twice while riding in a car in pursuit of another vehicle containing his brother and his brother's wife. (Doc. 54 at 33-34). On July 19, 2012, the DistrictJudge sentenced Movant to one hundred eight (108) months imprisonment in the United States Bureau of Prisons, to be followed by three (3) years supervised release. (Doc. 36). The District Court found that Movant's use of the firearm occurred in connection with the commission of attempted first degree murder. (Doc. 49 at 13, 22). The District Court, therefore, applied a cross-reference to the guideline for attempted first degree murder under United States Sentencing Guidelines § 2A2.1(a)(1) and calculated a base offense level of 33. (Id. at 22). On July 20, 2012, the Court entered its Judgment and Commitment. (Doc. 38).

Over the course of the Government's prosecution of Movant, he was represented by attorney Wayne N. Frost (appointed), whose representation began February 8, 2012. (Doc. 3). Attorney Frost is the subject of Movant's claims of ineffective assistance of trial counsel. (Doc. 60 at 5-6). On behalf of Movant, Mr. Frost filed a Notice of Appeal on July 31, 2012. (Doc. 42). On August 8, 2012, Movant filed a Motion to Withdraw and to Appoint New Counsel and Mr. Frost's representation was terminated. (Doc. 43). The Court appointed attorney David K. Sergi as Movant's counsel for appellate purposes. (Doc. 50). Attorney Sergi is the subject of Movant's claims of ineffective assistance of appellate counsel. On June 14, 2013, the United States Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. (Doc. 58 at 3). Movant did not pursue a petition for a writ of certiorari in the United States Supreme Court.

Movant, a federal prisoner, timely filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on December 16, 2013. (Doc. 60). On the same day, Movant filed a Memorandum in Support of his Motion to Vacate. (Doc. 61). On July 23, 2014, the Government filed its Response in Opposition to the Motion to Vacate. (Doc. 68). On August 11, 2014, Movant filed his Reply to the Government's Response. (Doc. 69). This matter is before the Magistrate Judge for the Midland/Odessa Division of the Western District of Texas by Order of Referral from the District Judge for a Report and Recommendation including proposed Findings of Fact andRecommendations for Disposition pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules for the Assignment of Duties of the United States Magistrates. (Doc. 70).

II. MOTION TO VACATE

First, Movant alleges an ineffective assistance of trial counsel claim in the plea context. Movant seeks to vacate his sentence and argues in his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 that "upon the advice of his Counsel, Wayne Frost, [Movant] entered a plea of guilty to the offense of 'felon-in-possession-of-a-firearm' in violation of Title 18 U.S.C. § 922(g)(1), at no time, prior to, during, or after [Movant] entered his guilty plea, was he aware that he could or would be punished for 'attempted murder.'" (Doc. 61 at 6). Contrary to the allegations raised in the Motion to Vacate, Movant was never charged, convicted or sentenced for the crime of attempted murder by the District Court.

Further, Movant contends that "Mr. Frost, never once advised [Movant] that his offense conduct may subject him to punishment for 'attempted first degree murder.'" (Id.). Again, Movant was not indicted or punished for the crime of attempted first degree murder by the District Court. Movant claims that had counsel told him "his offense conduct may subject him to punishment for 'attempted first degree murder,'" then he would not have entered a guilty plea. (Id.). Movant goes on to state that he "stead fastly [sic] denied that he 'attempted to commit first degree murder' and that his weapon possession was in no sense for violence or other conduct." (Id.).

Next, Movant alleges an ineffective assistance of counsel claim relating to the sentencing hearing in the underlying criminal case. Movant asserts that his trial counsel was ineffective during the sentencing hearing when he "voiced objections to the application of the underlying offense of attempted murder, however, the objection was not proper and not supported by law or the facts." (Id. at 4). Specifically, Movant contends that Mr. Frost should have raised a constitutional objection to Movant "being punished for an offense he did not plead guilty to." (Id.). Movant maintains that histrial counsel was ineffective at sentencing because Mr. Frost failed to prevent the murder cross-reference from being applied:

[Movant] entered a guilty plea to the criminal conduct which he believed to be guilty of on April 23, 2012, i.e. "prohibited person in possession of a firearm" in violation of 18 U.S.C. § 922(g)(1). At no point during, prior to or subsequent to entering his guilty plea, did [Movant] admit to "at[t]empting to murder" anyone and to use the Guidelines under § 2A2.1(a)(1), in calculating [Movant's] punishment is in stark contrast to [Movant's] Fifth and Sixth Amendment rights as set forth in the United States Constitution, and as set out ahead.

(Id. at 5). Movant argues that "the failure of [Movant's] lawyer in not voicing objections to the Court's use of the cross-reference to the Sentencing Guidelines for first degree murder under U.S.S.G. § 2A2.1(a)(1)," constituted ineffective assistance of counsel and violated Movant's "Due Process Clause right under the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the proscribed range of punishment for a crime must be charged in an indictment, submitted to a jury, and admitted by a guilty pleading defendant." (Id. at 8). Movant contends that his trial counsel "did not advise him that his range of punishment would be calculated while using the cross-reference to the United States Sentencing Guidelines ("USSG") and would necessarily require his felon-in-possession offense to be calculated under the 'first degree murder' provisions of the USSG." (Id.).

Finally, Movant contends that his appellate counsel was ineffective for failing to "adequately raise meritorious issues in [Movant's] direct appeal to the United States Court of Appeals for the Fifth Circuit." (Id. at 15-16). On appeal, attorney Sergi argued on behalf of Movant that "his actions did not amount to attempted first degree murder because he fired at his brother's vehicle in a sudden rage following heated exchanges with his brother." United States v. Munoz, 523 F. App'x 278, (5th Cir. 2013) (per curiam) (not selected for publication). The Fifth Circuit affirmed the District Court's finding that Movant used the firearm in connection with the commission of attempted first degree murder. Id. Movant argues that Mr. Sergi's argument was frivolous and "certainly falls outside thewide range of professional assistance required of a lawyer providing appellate representation from a criminal conviction." (Doc. 61 at 16). For the reasons set forth below, the Magistrate Judge recommends that Movant's Section 2255 Motion to Vacate be denied.

III. GOVERNMENT'S RESPONSE

In response to Movant's Section 2255 Motion to Vacate, the Government provides a thorough description of the underlying offense:

On January 29, 2012, [Movant] and some of his family members were at a nightclub in Midland, Texas. An altercation occurred among the family members, including [Movant], that resulted in [Movant's] brother, Edward Munoz, leaving the bar and getting into his vehicle. [Movant] and another individual got in another vehicle and pursued Edward at a high rate of speed. [Movant] was in the passenger seat of the pursuing vehicle and at least twice fired a 12-gauge shotgun out of the vehicle at the fleeing suburban that Edward was driving. After law enforcement located [Movant's] vehicle, a felony stop was conducted, and inside the vehicle were two firearms: a .22 caliber Marlin rifle and a 12-gauge shotgun. The foregoing largely tracks the oral factual basis with which [Movant] agreed on the record and to which he made not alteration or objection at the time of the plea.

The PSR recounts in greater detail what occurred on January 29, 2012, and provides the

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