U.S.A v. Fernandez

• Decision Date: 01 September 2010
• Docket Number: No. 08-5159,No. 4:01-CR-00065-TCK-1,No. 4:04-CV-00918-TCK-PJC,08-5159,4:01-CR-00065-TCK-1,4:04-CV-00918-TCK-PJC
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE DEJESUS FERNANDEZ, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JOSE DEJESUS FERNANDEZ, Defendant-Appellant.

No. 08-5159

No. 4:01-CR-00065-TCK-1

No. 4:04-CV-00918-TCK-PJC

United States Court Of Appeals

Tenth Circuit

FILED: September 1, 2010

ORDER AND JUDGMENT^*

Before HARTZ, EBEL, and O'BRIEN, Circuit Judges.

Per Curiam

Jose DeJesus Fernandez filed a 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence arguing, inter alia, he received ineffective assistance of counsel when his attorney failed to file a petition for writ of certiorari with the United States Supreme Court as he had requested. The district court denied Fernandez's § 2255 motionand denied his request for a certificate of appealability (COA).

We issued a COA on two issues—"whether Fernandez is required to demonstrate prejudice to succeed on his claims and, if so, whether he has made the required showing," and then appointed counsel to assist him. See 18 U.S.C. § 3006A. He now claims entitlement to extraordinary relief—recall of the mandate in an earlier merits appeal. We affirm.

I. BACKGROUND

Fernandez was convicted by a jury on federal drug charges involving a conspiracy to traffic methamphetamine. The United States Probation Office prepared a Presentence Report (PSR), which applied a four-level enhancement to Fernandez's base offense level for his role as an organizer/leader of a conspiracy involving more than five people. With this enhancement, the sentencing guideline range was 235 to 293 months imprisonment. The court sentenced him to 264 months, explaining "[a] sentence in the middle of the guideline range is appropriate, given the fact that with the adjustment for leader/organizer there are no other aggravating or mitigating circumstances for a crime of this type." (Appellee's Br., Attach. 2 at 4.)

Fernandez appealed, challenging both his conviction and sentence. Among other arguments, he asserted the trial court erred in applying the four-level leader/organizer enhancement. On December 8, 2003, we affirmed his conviction and sentence, specifically upholding the leader/organizer enhancement. United States v. Fernandez, 82 Fed. Appx. 656, 661-62 (10th Cir. 2003) (unpublished) (Fernandez I). He did not file apetition for writ of certiorari with the Supreme Court so his conviction became final when his time to file expired, at the latest, May 6, 2004.¹ See Clay v. United States, 537 U.S. 522, 527 (2003).

On December 9, 2004, Fernandez filed this 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence arguing, inter alia, his attorney, Frank Lockhart, was ineffective for failing to follow his instruction to petition for a writ of certiorari.² He argued Lockhart's ineffectiveness violated the Sixth Amendment and the Criminal Justice Act (CJA) and claimed prejudice because he lost the potential benefit of Blakely v. Washington, 542 U.S. 296 (2004) (holding any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be found by a jury). In support of his motion, he attached a declaration "under penalty of perjury" in which he stated he "repeatedly requested [his attorney] to file my certiorari to the Supreme Court, which he never did." (R. Vol. I at 68.) He stated he "had another inmate file an extension of time to the high court," but was unable to secure similar assistance to prepare and file a timely petition. (Id.) In response, the government submitted an affidavit in which Lockhart stated he "kept in touch through letters with Mr. Fernandez after the Tenth Circuit decision and Mr. Fernandez never requested that [he] file a Petition for Certiorari." (Id. at 89.)

The district court did not hold an evidentiary hearing to resolve the factual dispute. Instead it decided Lockhart's performance could not have been deficient because "the Supreme Court has held that defendants have no right to counsel to pursue discretionary review." (Id.) It rejected Fernandez's argument that he was prejudiced by losing the benefit of Blakely because his conviction became final on March 7, 2004, ³ and Blakely was not decided until June 24, 2004. The court did not address Fernandez's claim that his attorney's alleged ineffective assistance violated the CJA.⁴

The court denied Fernandez's request for a COA but permitted him to proceed in forma pauperis (ifp) on appeal. We granted the limited COA mentioned earlier.⁵

II. DISCUSSION

Indigent defendants do not have a constitutional right to counsel to pursue discretionary review. See Austin v. United States, 513 U.S. 5, 8 (1994). Because a defendant does not have a constitutional right to counsel on discretionary appeals, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), counsel's performance cannot be deemed constitutionally deficient for a failure to petition the Supreme Court for certiorari review. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); see also Nichols v. United States, 563 F.3d 240, 251 (6th Cir. 2009); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008). Fernandez has no legitimate claim under § 2255. See Brown v. United States, 34 F.3d 990, 991 (10th Cir. 1994) ("Section 2255 is available to correct errors of constitutional or jurisdictional dimension, or fundamental errors which result in a complete miscarriage ofjustice.").

Fernandez claims we should recall the mandate in Fernandez I because his counsel, Lockhart, did not comply with the requirements of the Tenth Circuit's CJA plan⁶ and he was prejudiced thereby. Our power to recall a mandate "is limited and should be exercised only in extraordinary circumstances." Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 114 F.3d 1513, 1522 (10th Cir. 1997); see also United States v. Contreras, 224 Fed. Appx. 862, 865 (10th Cir. 2007) (unpublished). The circumstances presented here are not extraordinary because Fernandez cannot demonstrate prejudice. Even in the unlikely event that the Supreme Court would grant a certiorari petition to decide the constitutionality of the federal sentencing guidelines when the petitioner had not preserved the issue in the trial court, it would be pure speculation to believe that he would have ultimately received any relief despite his failure to preserve the issue.

AFFIRMED.

Entered for the Court Per Curiam

O'BRIEN, J., concurring

I join the per curiam Order and Judgment, which properly affirms the denial of habeas relief. I write separately only to provide a more robust analysis of the issues.

To state a claim for relief cognizable under 28 U.S.C. § 2255, a petitioner must allege a violation of federal law constituting a "fundamental defect which inherently results in a complete miscarriage ofjustice, or an omission inconsistent with the rudimentary demands of fair procedure[.]" United States v. Gordon, 172 F.3d 753, 755 (10th Cir. 1999) (quotations omitted). According to the government Fernandez cannot obtain relief under § 2255 because the claimed error—counsel's failure to file a certiorari petition to the Supreme Court when requested to do so in violation of our CJA Plan¹ — does not qualify. See Brown v. United States, 34 F.3d 990, 991 (10th Cir. 1994) ("Section 2255 is available to correct errors of constitutional or jurisdictional dimension, or fundamental errors which result in a complete miscarriage of justice."); see also Hill v. United States, 368 U.S. 424, 428 (1962) (holding trial court's failure to ask defendant represented by counsel whether he had anything to say before imposing sentence "does not present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent") (quotations omitted).

Fernandez admits his claim "falls outside § 2255's remedial scope." (Appellant's Opening Br. at 16.) However, he urges this Court to follow the lead of the Second, Fourth, Fifth and Seventh Circuits and construe his § 2255 motion as a motion to recall the mandate in Fernandez I, and then reissue the decision to allow him to timely file a petition for writ of certiorari. See United States v. Johnson, 308 Fed. Appx. 768, 769 (5th Cir.) (unpublished), cert. denied, 129 S. Ct. 2885 (2009); United States v. Smith, 321 Fed. Appx. 229, 233 (4th Cir. 2008) (unpublished), cert. granted, 129 S. Ct. 2763 and remanded to 357 Fed. Appx. 518 (2009); Nnebe v. United States, 534 F.3d 87, 92 (2d Cir. 2008); United States v. Price, 491 F.3d 613, 616 (7th Cir. 2007) (Ripple, J., in chambers); United States v. James, 990 F.2d 804, 804-05 (5th Cir. 1993).

In Nnebe, the Second Circuit considered "what relief is available when, in violation of [its] rules implementing the [CJA], appellate counsel promises to file a certiorari petition, but fails to do so." 534 F.3d at 88 (citation omitted). The government did not dispute Nnebe's contention that his counsel was aware of his desire to petition for certiorari and forwarded him a draft petition which was never filed. It argued Nnebe was not entitled to relief under § 2255 because he "is required to show prejudice, but cannot, because his petition would almost certainly have been denied." Id. at 90. Relying on Wilkins v. United States, 441 U.S. 468 (1979), ² Nnebe argued the court should, without requiring him to demonstrate prejudice, construe his appeal from the denial of his § 2255 motion as a motion to recall the mandate and vacate judgment to afford him one clearopportunity to file a certiorari petition. The Second Circuit agreed, explaining:

Given this construction [of Nnebe's application as one to recall the mandate], it would be illogical to conclude that the application should continue to be treated as though it were a Section 2255 motion. The Supreme Court in Wilkins clearly signaled that the Courts of Appeals should make appropriate relief available so that defendants are not disadvantaged by the failures in representation by CJA counsel. This remedial purpose would be frustrated if the myriad procedural considerations that properly apply to Section 2255 motion

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