Tinajero–ortiz v. U.S.

• Decision Date: 14 June 2011
• Docket Number: No. 10–2344.,10–2344.
• Citation: 635 F.3d 1100
• Parties: Victor Manuel TINAJERO–ORTIZ, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

635 F.3d 1100

Victor Manuel TINAJERO–ORTIZ, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 10–2344.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2011.Filed: April 8, 2011.Rehearing and Rehearing En Banc Denied June 14, 2011.

Ronald A. Parsons, Jr., argued, Sioux Falls, SD, for appellant.Mark E. Salter, AUSA, argued, Sioux Falls, SD, Carolyn G. Olson, AUSA, on the brief, Rapid City, SD, for appellee.Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.MURPHY, Circuit Judge.

Victor Manuel Tinajero–Ortiz pled guilty to possession with intent to distribute methamphetamine, and consistent with his plea agreement he was sentenced to 120 months in prison. After his direct appeal was dismissed, Tinajero–Ortiz filed this 28 U.S.C. § 2255 action alleging that his trial counsel was constitutionally ineffective and misled him to believe that by pleading guilty he would receive five years in prison. The district court ¹ denied his petition but granted him a certificate of appealability. Tinajero–Ortiz argues that the district court erred by concluding that his trial counsel was not ineffective and abused its discretion by denying him an evidentiary hearing. We affirm.

I.

Tinajero–Ortiz is a Mexican citizen who earlier in his life was a promising professional soccer player and scholarship recipient. At age 18 he illegally entered the United States to spend time with his brother and later started a family in South Dakota, where his children and other family members live. Since 1998 Tinajero–Ortiz has been arrested four times; he was convicted twice for illegal reentry and once for identity theft, and was deported after each conviction.

After petitioner's most recent illegal reentry, he was asked to transport a package of methamphetamine from the southwestern United States to Rapid City, South Dakota. Law enforcement was tipped off, and Tinajero–Ortiz was arrested at the Rapid City bus terminal. In October 2007 he was indicted for possession with intent to distribute methamphetamine and illegal reentry. He also faced a petition to revoke a term of supervised release imposed for his identity theft conviction. An assistant federal defender represented Tinajero–Ortiz after the indictment was filed.²

After he was arraigned, Tinajero–Ortiz indicated a willingness to cooperate. On his attorney's advice Tinajero–Ortiz signed a proffer letter offering to tell the government all that he knew about the drug trafficking conspiracy, in exchange for the government's agreement that none of the information could be used in any criminal proceeding against him. The proffer letter provided that the government made no promises of any kind in return. The United States then debriefed Tinajero–Ortiz, who only provided minimal information about his drug contacts. The government decided not to move for a downward departure for substantial assistance.

Subsequently Tinajero–Ortiz and the United States entered into a plea agreement. Tinajero–Ortiz agreed to plead guilty to the drug charge. For its part the government agreed to dismiss his illegal reentry charge and to recommend a sentence at the low end of the guideline range with a concurrent term for any sentenced imposed for revocation of his supervised release. Both parties agreed that if the information Tinajero–Ortiz had provided would later prove to be useful, the government would file a substantial assistance motion. The parties further agreed that any sentencing recommendation was not binding on the court and that the statutory minimum sentence was five years, while the maximum was forty years.

Tinajero–Ortiz asserts that his counsel told him that he would receive a five year sentence in exchange for pleading guilty. He says that he believed the five year statutory minimum recited in the plea agreement was the “low end” of the as yet uncalculated guideline range. This alleged misrepresentation is at the heart of the claim he now raises.

Soon after signing the plea agreement, Tinajero–Ortiz entered his guilty plea in a hearing before U.S. District Court Judge Karen Schreier. Judge Schreier engaged him in a lengthy plea colloquy, during which Tinajero–Ortiz indicated that he had read and discussed the agreement with his attorney; that he understood all its terms and that it represented “in its entirety all of the understanding” of the parties; that the government had not made any separate promises; and that the terms of the agreement were “merely recommendations” which the court could reject at sentencing. Tinajero–Ortiz said he understood that five years was the minimum term of imprisonment and forty years the maximum; and that the guideline range to be later determined by the district court could be different from the range he had discussed with his attorney. After agreeing that these were the terms of the agreement, Tinajero–Ortiz pled guilty.

Before completing its Presentence Investigation Report (PSR), the probation office calculated petitioner's guideline range to be between 120 and 150 months. Under the terms of the plea agreement the parties had agreed to a sentence “at the low end” of this range. Nevertheless, two weeks before sentencing petitioner's attorney filed a sentencing memorandum requesting a downward variance to “three to five years” or “five years or less.” Ten days later the attorney withdrew this request and instead moved the court “for a sentence at the low end of his guideline [range] as ultimately determined by the court.”

At the sentencing hearing, the district court adopted the proposed guideline range in the PSR. His attorney stated that Tinajero–Ortiz agreed to “ask for a sentence of 120 months as the guidelines contemplate.” Counsel also stated that Tinajero–Ortiz had hoped “to get a [60 month] sentence, a sentence that would be the mandatory minimum,” and that “when [he] looked at the guidelines, [a 60 month] sentence would be about half of the low end of the guideline range.” Tinajero–Ortiz addressed the court, apologized for his criminal conduct and stated that he was “not a bad person.” He raised no objection to the court's calculation of the guideline range or to his attorney's request for a 120 month sentence. The district court sentenced Tinajero–Ortiz to 120 months in prison.

When Tinajero–Ortiz attempted to appeal his sentence, it was summarily dismissed because of the appeal waiver in his plea agreement. Tinajero–Ortiz subsequently filed this 28 U.S.C. § 2255 petition seeking to vacate his sentence on the ground that his attorney had provided constitutionally ineffective assistance. He complains that he received a ten year sentence instead of the five year mandatory minimum, which his attorney allegedly promised if he pled guilty. Tinajero–Ortiz states that if counsel had not assured him he would receive the five year minimum, he would not have pled guilty.

Magistrate Judge Veronica Duffy reviewed petitioner's assertions of ineffective assistance at length and recommended denial of his petition. Applying the two part test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), she concluded that his allegations of ineffective assistance were without merit. She determined that the government's discretionary decision not to make a downward departure motion was unassailable absent some allegation of bad faith. Even if his attorney had failed to understand the terms of the plea agreement and had misrepresented them to Tinajero–Ortiz, she concluded that he had failed to show Strickland prejudice. Regardless of what he may have been told, “there was no guarantee that the court would sentence him to 5 years.”

Judge Schreier adopted in full the magistrate's report and recommendation after concluding that Tinajero–Ortiz had “failed to show either that his counsel's representation was objectively deficient or that any such deficiencies prejudiced the defense and affected the judgment.” She denied his § 2255 petition but granted him a certificate of appealability. Petitioner now argues not only that his counsel provided him constitutionally ineffective assistance, but also that he should have been granted an evidentiary hearing by the district court.

II.

Tinajero–Ortiz first argues that the district court erred in concluding that his counsel had not provided constitutionally ineffective assistance. “When addressing post-conviction ineffective assistance claims brought under § 2255, we review the ineffective assistance issue de novo and the underlying findings of fact for clear error.” United States v. Regenos, 405 F.3d 691, 692–93 (8th Cir.2005). The two part Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Tinajero–Ortiz has the burden to prove both that his counsel's representation “fell below an objective standard of reasonableness,” Regenos, 405 F.3d at 693, and that there is a “reasonable probability that, but for counsel's errors, he would not have [pled] guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366.

Petitioner argues that his attorney provided constitutionally ineffective assistance in two ways.³ He suggests first that counsel misled him by telling him that he “would likely receive a sentence of five years for pleading guilty.” Tinajero–Ortiz points to counsel's original sentencing memorandum in which he requested the court impose a sentence of “five years or less” or “three to five years,” without mentioning that the plea agreement stipulated that the parties would recommend a sentence “at the low end” of the guideline range. Asserting that he would not have pled guilty without counsel's misrepresentations, Tinajero–Ortiz argues he has satisfied the two part test for ineffective assistance under Strickland.

Tinajero–Ortiz argues that his counsel was also constitutionally ineffective for...