Perez v. United States
| Decision Date | 27 November 2012 |
| Docket Number | No. CV 11-4079-MWB,No. CR 9-4067-MWB,CV 11-4079-MWB,CR 9-4067-MWB |
| Parties | ISAIAS PLANCENCIA PEREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
ORDER RE PETITIONER'S
TABLE OF CONTENTS
This case is before me on petitioner Isaias Plancencia Perez's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on September 6, 2011. Perez claims that the attorney who represented him at the trial level provided him with ineffective assistance of counsel in several ways. The respondent denies that Perez is entitled to any relief on his claims.
On December 16, 2009, Perez was charged by a two-count Indictment (Crim. docket no. 2). The first count of the indictment charged Perez with distribution of 5 grams or more of actual methamphetamine on or about June 26, 2009, having previously been convicted of a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851. See Crim. docket no. 2. The second count of the indictment charged Perez with distribution of 5 grams or more of actual methamphetamine on or about July 10, 2009, having previously been convicted of a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(B) and 851. See Crim. docket no. 2. On December 22, 2009, Perez appeared in front of then Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to the Indictment. See Crim. docket no. 6.
On February 2, 2010, Perez appeared before Judge Zoss to change his plea to guilty to both counts of the Indictment. See Crim. docket no. 19. That same day, Judge Zoss filed a Report And Recommendation Concerning Plea Of Guilty (Crim. docket no. 20), recommending that Perez's plea of guilty be accepted. I entered an Order ConcerningMagistrate's Report And Recommendation Regarding Defendant's Guilty Plea (Crim. docket no. 22) on February 17, 2010, thereby accepting Perez's guilty plea.
Perez appeared before me on May 4, 2010, for a sentencing hearing. See Crim. docket no. 30. I found that Perez's offense level was 25. Sent. Trans. at 16. I determined that, even after reducing Perez's criminal history by two points based on the expected amendment and removal of the recency provision, Perez remained in a criminal history category of 6. Sent. Trans. 16-17. This established Perez's guideline range as 110 to 137 months. Sent. Trans. at 16. However, because Perez was subject to a § 851 enhancement for his prior felony drug conviction, there was an applicable mandatory minimum sentence of 120 months. Sent. Trans. at 16. This made Perez's effective guideline range 120 to 137 months. Sent. Trans. at 16. I determined that the appropriate sentence, in Perez's case, after consideration of the 18 U.S.C. § 3553(a) factors, and after voicing concern at the number and frequency of his drunk driving offenses, was at the middle of the guideline range, and sentenced Perez to 130 months. Sent. Trans. at 17.
On September 6, 2011, Perez filed a Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1). On April 6, 2012, counsel appointed to represent Perez on his § 2255 Motion filed a Motion to Withdraw and an Anders Brief (Civ. docket no. 13). The respondent filed a Response and Memorandum (Civ. docket no. 14), on May 2, 2012. Perez filed a Pro Se Supplemental Brief (Civ. docket no. 17), on June 20, 2012. On June 27, 2012, the respondent filed a Response and Memorandum (Civ. docket no. 18), to Perez's Supplemental Brief.
Section 2255 of Title 28 of the United States Code provides 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 [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003) (). Thus, a motion pursuant to § 2255 "is 'intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One "well established principle" of § 2255 law is that "'[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780.One exception to that principle arises when there is a "miscarriage of justice," although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence," and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 . Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that 'a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration"'that, in light of all the evidence, it is more likely than not that no reasonable juror would Have convicted [the petitioner].'" Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37 (2006). "'This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the challenged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
With these standards in mind, I turn to analysis of Perez's claims for § 2255 relief.
"A district court does not err in dismissing a movant's section 2255 motion without a hearing if (1) the movant's 'allegations, accepted as true, would not entitle' the movant to relief, or '(2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006) (); see 28 U.S.C. § 2255. On the other hand, an evidentiary hearing is necessary where "'the court is presented with some reason to question the evidence's...
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