Ramirez-Guzman v. United States, EP-12-CV-198-KC
| Decision Date | 25 September 2013 |
| Docket Number | EP-12-CV-198-KC,EP-11-CR-416-KC-2 |
| Parties | CESAR RAMIREZ-GUZMAN, Fed. Reg. No: #71215-280, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Texas |
On this day, the Court considered Cesar Ramirez-Guzman's ("Ramirez-Guzman") "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" ("Motion"). ECF No. 72. For the reasons set forth below, the Motion is DENIED.
On February 23, 2011, the grand jury sitting in El Paso, Texas returned a two-count Indictment charging Ramirez-Guzman with: Conspiracy to Possess Fifty Kilograms or More of Marijuana with Intent to Distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1); and Possession of Fifty Kilograms or more of Marijuana with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). See generally Indictment, ECF No. 17. Id. Ramirez-Guzman pleaded guilty to both charges on April 29, 2011, before a United States Magistrate Judge, which plea this Court accepted on May 18, 2011. ECF Nos. 37, 39.
On July 19, 2011, this Court sentenced Ramirez-Guzman to forty-two months of incarceration for each of the two counts, to be served concurrently, followed by a term of non-reporting supervised release of three years. J. 2-3, ECF No. 52. The Court also imposed a $200 special assessment. Id. at 6. On May 29, 2012, Ramirez-Guzman filed the instant Motion, to which the government responded on August 6, 2012.
After a petitioner has been convicted and has exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)). Accordingly, "[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)). Typically, before a court will grant relief pursuant to § 2255, the petitioner must establish: "(1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, a collateral challenge to a conviction or sentence should not serve as a substitute for a direct appeal. Frady, 456 U.S. at 165; United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a petitioner must either: (1) demonstrate "cause" fornot raising the issue on direct appeal and "actual prejudice" resulting from the error, or (2) show that he is "actually innocent" of the crime for which he was convicted. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). The cause and actual prejudice standard is "significantly more rigorous than even the plain error standard . . . applied on direct appeal." Gaudet, 81 F.3d at 589. If the petitioner does not meet either burden, then he is procedurally barred from attacking his conviction or sentence. United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992). This procedural bar does not apply, however, to claims alleging ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 508 (2003).
The United States Constitution's Sixth Amendment guarantees an accused the right to the assistance of counsel for his defense in all criminal prosecutions. U.S. Const. amend. VI. Moreover, "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). "[I]neffective assistance claims are ordinarily brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of direct appeal." Gaudet, 81 F.3d at 589 n.5. To merit relief on an ineffective assistance of counsel claim, a petitioner must demonstrate both (1) that his "counsel's performance was deficient[,]" and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (). A failure to establish either prong of this test requires a court to find that counsel's performance was constitutionally effective. See Strickland, 466 U.S. at 687 (); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997)("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim."); Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) ().
The test's performance prong centers on whether counsel's assistance was reasonable, considering all the circumstances at the time of counsel's conduct. See Strickland, 466 U.S. at 688 (). In order to obtain relief, a petitioner must establish "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In assessing whether a particular counsel's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
A deficiency in counsel's performance, even if professionally unreasonable, does not equal ineffective assistance of counsel; the petitioner must also demonstrate actual prejudice. See id. at 691-92 ( ). The test's prejudice prong requires the petitioner to Id. at 694.
A court reviews pro se pleadings under a less stringent standard than those drafted by attorneys, and such pleadings are entitled to a liberal construction that includes all reasonable inferences which can be drawn from them. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). At the same time, however, parties proceeding pro se are still required to provide sufficient facts in support of their claims. United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Even under the rule of liberal construction, "mere conclusory allegations on a critical issue are insufficient . . . ." Id. (citing United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)).
In his Motion, Ramirez-Guzman seeks a reduction in his sentence on two grounds. First, he argues that his counsel was ineffective for failing to request a two-level downward departure to his base offense level in exchange for his acceptance of a Final Order of Removal. Mot. 5. Second, Ramirez-Guzman claims counsel was ineffective for failing to seek his removal from the United States as a condition of his supervised release. Mot. 6. The Court addresses each challenge in turn
In the Motion, Ramirez-Guzman states that "[u]nder the Attorney General Memorandum dated April 28, 1995, the United States Attorney General and 'Ashcroft Memo' dated September 22, 2003, as well as two subsequent memoranda, [sic] can offer up to (2) points downward departure if defendant accepts a final deportation order." Mot. 5. Because his attorney did not seek this two-point departure, Ramirez-Guzman argues he received ineffective assistance of counsel. Mot. 5.
At the outset, the Court notes that this is not the first district court in recent times to encounter a motion to vacate premised upon these Attorney General memoranda. See, e.g., United States v. Mendez-Acosta, 2:10-CR-476-KJD-GWF, 2013 WL 2405234 (D. Nev. May 31, 2013); United States v. Ortega, 5:10-CR-50106, 2013 WL 695011 (W.D. Ark. Jan. 31, 2013); United States v. Estrada-Chavez, 3:11-005-DCR, 2012 WL 5178182 (E.D. Ky. Oct. 18, 2012); Figueroa-Ornelas v. United States, 3:11-CR-972, 2012 WL 4482055 (W.D. Tex. Sept. 26, 2012) United States v. Ambriz-Corona, C-08-816, 2009 WL 4281146 (S.D. Tex. Nov. 25, 2009). The Court has reviewed the opinions of these courts and follows their reasoning to the extent they comport with Fifth Circuit precedent and to the extent this Court finds them persuasive.
In his Motion, Ramirez-Guzman appears to argue that the Attorney General's April 28, 1995, memorandum ("1995 Memo") allowed his attorney to seek a down...
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