Perez-Hernandez v. United States

• Decision Date: 24 November 2015
• Docket Number: CIVIL ACTION NO. 14-00229-WS,CRIMINAL ACTION NO. 11-00011-WS
• Parties: PEDRO PEREZ-HERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Alabama

PEDRO PEREZ-HERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 14-00229-WS

CRIMINAL ACTION NO. 11-00011-WS

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

November 24, 2015

REPORT AND RECOMMENDATION

Pedro Perez-Hernandez, proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 107) and a motion to amend his original motion (Doc. 135) challenging this Court's judgment against him in the above-styled criminal action. The United States of America ("Respondent") has timely filed responses in opposition to the § 2255 motion as amended (Docs. 113 & 137), and Perez-Hernandez has filed two reply briefs (Docs. 133 & 138) to the responses filed by the United States.

Perez-Hernandez's § 2255 motion is now under submission and is ripe for adjudication. This matter has been referred to the undersigned Magistrate Judge for the holding of an evidentiary hearing, if necessary, and for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, and S.D. Ala. General L.R. 72(a)(2)(R). Upon consideration, and for the reasons stated herein, the undersigned will RECOMMEND that Perez-Hernandez's § 2255 motion, as amended, be DENIED and that this matter be DISMISSED with prejudice. The undersigned further RECOMMENDS that Perez- Hernandez be found not entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.

I. Background

In January 2011, Perez-Hernandez was charged for possessing a firearm after having been convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1) (Doc. 1.) Perez-Hernandez retained attorney James Byrd, Esq., to represent him (See, e.g., Doc. 9.) and on June 21, 2011, pursuant to a written plea agreement (Doc. 18), entered a plea of guilty to the sole count of the indictment. (Doc. 19).

Two days prior to sentencing, on October 17, 2011, Perez-Hernandez filed a pro se motion to dismiss his retained attorney (Doc. 28). After a hearing on the issue of continued representation, the oral motion to withdraw submitted by Byrd was granted (Doc. 31) and a CJA Panel Attorney, Richard Alexander, Esq., was appointed to represent the defendant. (Id.) With the assistance of Alexander, Perez-Hernandez filed a motion to withdraw his guilty plea and to continue the sentencing hearing (Doc. 33). The Court granted the request for a continuance of the sentencing hearing and required the defendant to supplement his motion to withdraw his guilty plea by providing specific details to support the generalities contained therein (Doc. 34).¹ Perez-Hernandez declined to submit additional information that would explain why hewished to renounce the responses he made under oath during the guilty plea hearing and his motion to withdraw his guilty plea was thereafter denied on January 6, 2012 (Doc. 48).

On January 19, 2012, following a sentencing hearing with assistance of counsel and the services of an interpreter, Perez-Hernandez was sentenced to forty-six months imprisonment, followed by three years of supervised release. (Doc. 69) Richard Alexander was allowed to withdraw (Doc. 54) and CJA Attorney Richard Shields, Esq., was appointed to represent Perez-Hernandez on appeal (Docs. 55 & 56). The judgment of Perez-Hernandez's conviction and sentence was entered January 31, 2012. (Doc. 69).

Even though the appeal filed by Perez-Hernandez only challenged the denial of his motion to withdraw his guilty plea (Doc. 84), it clearly involved several issues that are raised in this motion filed pursuant to § 2255.² That appeal was decided against Perez-Hernandez on September 24, 2012 (Id. at 6, see also Doc. 87) and his petition for certiorari was denied on October 7, 2013 (Doc. 107). Perez-Hernandez filed his present § 2255 motion on May 23, 2014.³ (See Id.).

II. Applicable Law

A. General Standards Under § 2255. Section 2255 provides, in relevant measure, as follows: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. . . . If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(a) & (b).

Section 2255 thus "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence[,]" Winthrop-Redin v. United States, 767 F.3d 1210, 1215-1216 (11th Cir. 2014) (citation omitted), and courts in this Circuit are to "liberally construe" such pro se applications for relief, id. at 1215.

Once a petitioner files a § 2255 motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary hearing if he "alleges facts that, if true, would entitle him to relief." Aron[ v. United States], 291 F.3d [708,] 715 [(11th Cir. 2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). "[A] petitioner need only allege—not prove—reasonably specific, non-conclusory facts that, if true, would entitle him to relief." Id. at 715 n.6. However, a district court need not hold a hearing if the allegations are "patently frivolous," "based upon unsupported generalizations," or "affirmatively contradicted by the record." Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d519, 520-21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) ("Because the ... affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.").

Id. at 1216 (footnote omitted).

It is clear that "a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.) (per curiam) (citing Frady, 456 U.S. at 165, 102 S.Ct. at 1593 (collecting cases)), cert. denied, 543 U.S. 891, 125 S.Ct. 167, 160 L.Ed.2d 154 (2004). This is in large measure because "[o]nce the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592 & 1592-1593, 71 L.Ed.2d 816 (1982). Thus, "[b]ecause collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 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. Accordingly, a non-constitutional error that may justify reversal on direct appeal does not generally support a collateral attack on a final judgment, unless the error (1) could not have been raised on direct appeal and (2) would, if condoned, result in a complete miscarriage of justice." Lynn, supra, 365 F.3d at 1232-1233 (internal citations, quotation marks, and footnote omitted).

Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding. This rule generally applies to all claims, including constitutional claims.

A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if a constitutional violation has probably resulted in the conviction of one who is actually innocent.

Id. at 1234-1235 (internal citations, quotation marks, and footnote omitted).

B. Pleading Requirements Under § 2255. The rules that govern motions filed under 28 U.S.C. § 2255 specifically require that the motion: (1) specify all the grounds for relief available to the moving party; (2) state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly handwritten; and (5) be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant. Rule 2(b), Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255. The Appendix of Forms for these rules contains instructions and a form (which was used in this case) designed to assist pro se parties with the pleading...