Ordones v. United States
| Decision Date | 02 August 2018 |
| Docket Number | Criminal No. 1:15cr1065-1,Civil Action No. 1:17cv89 |
| Parties | ANDRES RAMOS ORDONES, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
The Court is in receipt of Movant Andres Ramos Ordoñes's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (hereinafter, Ordoñes's "Motion" or "§ 2255 Motion"). Dkt. No. 1. Ordoñes's § 2255 Motion attacks his judgment of conviction and sentence in United States v. Andres Ramos Ordonez, 1:15-cr-1065-1.1 The Government has filed a Motion to Dismiss and Alternative Motion for Summary Judgment (hereinafter, the Government's "Motion"). Dkt. No. 13. For the reasons provided below, it is recommended that the Court GRANT the Government's Motion and DISMISS Ordoñes's § 2255 Motion with prejudice. Additionally, it is recommended that the Court DECLINE to issue a certificate of appealability.
On March 3, 2016, Ordoñes pleaded guilty in this Division to being an alien unlawfully found in the United States after deportation, subsequent to having been convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). See CR Dkt. No. 27 at 1. On June 15, 2016, United States District Judge Rolando Olvera sentenced Ordoñes to 57 months of imprisonment. Id. at 1-2. Judgment was entered on June 29, 2016. Id. at 1. Ordoñes filed a notice of appeal on June 23, 2016. CR Dkt. No. 25. The Court of Appeals for the Fifth Circuit dismissed his appeal on March 28, 2017, finding that he had raised "no nonfrivolous issue for appellate review." CR Dkt. No. 41 at 1-2.2
Ordoñes filed his instant pro se § 2255 Motion on April 24, 2017. Dkt. No. 1. Ordoñes's Motion purports to assert three separate grounds for relief. First, he claims that his trial counsel provided him with ineffective assistance by failing to "adequately and intelligently" explain "the legalities" of his case. Dkt. No. 1 at 4. Second, he contends that his counsel provided him with ineffective assistance when he failed to inform him of, and object to, the contents of his Presentence Investigation Report. Id. Third, he asserts that the Court improperly enhanced his sentence pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A)(ii)because the offense relied upon to enhance his sentence was not a "crime of violence" for sentencing purposes. Id.
The Government contends that all of Ordoñes's claims lack merit and are subject to dismissal under Federal Rule of Civil Procedure 12(b)(6); and, alternatively, under Federal Rule of Civil Procedure 56. Dkt. No. 13 at 13-24.
28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 2255, a defendant may move to vacate, set aside or correct his sentence if: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The nature of a § 2255 collateral challenge is extremely limited, being reserved for instances of constitutional or jurisdictional magnitude. United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If an error is not of constitutional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).
FED. R. CIV. P. 12(b)(6). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must state a claim upon which relief can be granted or the complaint may be dismissed with prejudice as a matter of law. FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss for failure to state a claim, well-pleaded facts must be accepted as true and viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) ().
In Katrina Canal Breaches, the Fifth Circuit acknowledged the Supreme Court's abrogation of the "no set of facts" standard for determining the adequacy of a pleading:
We have often stated that a claim should not be dismissed under Rule 12(b)(6) unless the plaintiff would not be entitled to relief under any set of facts or any possible theory he may prove consistent with the allegations in the complaint. See, e.g., Martin K. Eby Constr., 369 F.3d at 467 (quoting Jones, 188 F.3d at 324). This standard derived from Conley v. Gibson, which stated that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957). But recently in Bell Atlantic, the Supreme Court made clear that the Conley rule is not "the minimum standard of adequate pleading to govern a complaint's survival." 127 S.Ct. at 1968-69.
495 F.3d at 205 n.10. To withstand a Rule 12(b)(6) motion, then, "the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'" Id. at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570-72, 127 S. Ct. 1955, 1974 (2007)). This means that a complaint, taken as a whole, "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory[.]" Twombly, 550 U.S. 544, 562 ().
"[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 555 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. Although the Supreme Court in Twombly stressed that it did not impose a probability standard at the pleading stage, an allegation of a mere possibility of relief does not satisfy the threshold requirement of Rule 8(a)(2) that the "plain statement" of a claim include factual "allegations plausibly suggesting (not merely consistent with)" an entitlement to relief. Twombly, 550 U.S. 544, at 557. See also Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S.Ct. 1937, 1953 (2009) (). A court need not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions[.]" Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
Federal Rule of Civil Procedure 56. The standard applied when ruling on a motion for summary judgment is set forth in Rule 56 of the Federal Rules of Civil Procedure. FED. R. CIV. P. 56(a). In pertinent part, Rule 56 provides that the court "shall grant summary judgment if the movant shows that there is no genuinedispute as to any material fact and the movant is entitled to judgment as a matter of law." Id., see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986) (same). Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), cert. denied, 531 U.S. 831, 121 S.Ct. 84 (2000). District courts considering motions for summary judgment in ordinary civil cases are required to construe the facts in the case in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255. Additionally, courts must construe the pleadings of pro se litigants liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Ineffective Assistance of Counsel. The "Sixth Amendment guarantees a[ll] defendant[s] the right to have counsel present at all 'critical' stages of the criminal proceedings" instituted against them. Missouri v. Frye, 566 U.S. 134, 140 (citing Montejo v. Louisiana, 556 U.S. 778, 786 (2009)). Critical stages include not only trial, but also pretrial proceedings — including the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012); Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 57 (1985). Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing is also constitutionally impermissible. Lafler, 566 U.S. 156.The constitutional standard for determining whether a criminal defendant has been denied effective assistance of counsel at any of the critical stages mentioned above was announced by the Supreme Court in Strickland v. Washington:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" g...
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