U.S. v. Hernandez

• Citation: 137 F.Supp.2d 919
• Decision Date: 30 March 2001
• Docket Number: No. 3:94CR779.,No. 3:00CV712.,3:94CR779.,3:00CV712.
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Lupe HERNANDEZ, Defendant/Petitioner.
• Court: U.S. District Court — Northern District of Ohio

137 F.Supp.2d 919

UNITED STATES of America, Plaintiff/Respondent, v. Lupe HERNANDEZ, Defendant/Petitioner.

No. 3:94CR779.

No. 3:00CV712.

United States District Court, N.D. Ohio, Western Division.

March 30, 2001.

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Lupe Hernandez, Lisbon, OH, petitioner pro se.

Deborah Kovac Rump, Office Of The U.S. Attorney, Toledo, OH, for United States of America, respondent.

OPINION AND ORDER

JOHN W. POTTER, Senior District Judge.

This action is before the Court on Lupe Hernandez's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, the government's reply and supplemental brief and petitioner's response and supplemental brief.

As an initial matter, in § 2255 proceedings, evidentiary hearings are not required when the record conclusively shows that the petitioner is entitled to no relief. Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996) (citing Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). Because the record in this case conclusively shows that petitioner is not entitled to relief, the Court finds that an evidentiary hearing is not needed. Rule 8 of the Rules Governing § 2255 Proceeding. For the reasons hereinafter stated, the § 2255 motion will be denied.

In order for petitioner to prevail under § 2255 on the basis of a nonconstitutional error, the record must reflect a fundamental defect in the proceedings that inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994); United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.1993). In order to obtain relief under § 2255 on the basis of a constitutional error, the record must reflect an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); United States v. Ross, 40 F.3d 144, 146 (7th Cir. 1994).

Hernandez and eight co-defendants were indicted on December 7, 1994, in a six count indictment. Hernandez was charged in Count 1 with conspiracy to possess and distribute heroin, cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; in Count 2 with conspiracy to import heroin and marijuana from a place outside the United States, in violation of 21 U.S.C. §§ 960(a)(1) and 963; in Count 3 with conspiracy to launder the proceeds, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (b)(1) and (g); and in Count 6 with a forfeiture count pursuant to 21 U.S.C. § 853. On October 12, 1995, Hernandez pled guilty pursuant to an oral plea agreement to each count in which he was charged. Five of his co-defendants had previously pled guilty and had agreed to testify against him. After a lengthy sentencing hearing, Hernandez was sentenced on August 26, 1997 to 264 months imprisonment on Counts 1 and 2 and 240 months imprisonment on Count 3, to run concurrently.

Hernandez appealed his conviction and sentence, challenging the validity of his plea, based in part on a claim of ineffective assistance of counsel, and the calculation of his sentence. Specifically, he argued that his guilty plea was not knowingly and voluntarily made due to the fact that he believed the government had agreed not to forfeit two residences per his request and that a comment of counsel led him to believe that he would receive no more than 21 years imprisonment. In addition, he argued that the plea agreement was breached when he was sentenced to 22, rather than 21, years in prison and that this Court erred in several respects in calculating his sentence. The Court of Appeals rejected petitioner's arguments and affirmed his conviction and sentence.

Hernandez raises the following grounds for relief in his motion to vacate sentence: (1) the government violated two provisions of the oral plea agreement; (2) he received ineffective assistance of trial counsel; and (3) he received ineffective assistance of appellate counsel. In addition, the Court requested supplemental briefs on the applicability in this case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In his first ground for relief, petitioner attempts to challenge his guilty plea by arguing that the government violated the terms of an oral plea agreement, namely, that the government would not object to sentencing at the low end of the guidelines and that it would not forfeit two residences as requested by petitioner. However, a federal prisoner may not relitigate in a § 2255 motion to vacate sentence claims that were raised and considered on direct appeal. See United States v. Jones, 918 F.2d 9, 10 (2d Cir.1990); Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986). A federal prisoner is further barred from asserting claims that could have been brought on direct appeal, absent a showing of cause and prejudice for the failure to bring those claims. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

The Court of Appeals specifically addressed on direct appeal petitioner's argument as it relates to the forfeiture of certain real property and, in essence, found that the criminal forfeiture in this case was consistent with the government's representations at the plea hearing. United States v. Hernandez, 182 F.3d 919 (Table), 1999 WL 486620, *4 (6th Cir. July 1, 1999). The Court of Appeals stated as follows:

The government could both guarantee two terms (no objection to a reduction and to a sentence at the low end) and promise nothing more than a good-faith effort regarding a third term (forfeiture). Hernandez's comments at the hearing suggest that he realized the difference. Near the end of the hearing, the court asked, "Have any promises, other than what Ms. Rump stated, about a two-level reduction, have any other promises been made to cause you to change your pleas?" Hernandez responded, "Just not — to the low end of the guidelines."

Id. Thus, petitioner may not relitigate this issue in the instant motion.

Petitioner's claim that the government violated its agreement not to object to sentencing at the low end of the guidelines could have been, but was not, raised on direct appeal. To the extent that petitioner argues ineffective assistance of appellate counsel as cause for this default, for the reasons set forth later in the opinion, the Court finds the argument not well taken. Because he has failed to demonstrate cause or actual prejudice, petitioner is barred from asserting this claim in this § 2255 motion.

In his second ground for relief, petitioner contends that he received ineffective assistance of trial counsel.¹ A petitioner alleging ineffective assistance of counsel must show both that counsel's performance was deficient and that this deficient performance prejudiced the defense so as to render the proceeding unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel's performance was deficient, petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. In the guilty plea context, in order to show that counsel's performance was sufficiently prejudicial, a petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir.1988) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)); Ludwig v. United States, 162 F.3d 456, 458 (6th Cir.1998).

Petitioner first contends that trial counsel rendered ineffective assistance in representing to him that the government would not object to sentencing at the low end of the guidelines. However, counsel was clearly justified in making this representation since the government explicitly so stated at the plea hearing.

Petitioner next argues that he would not have pled guilty had counsel not represented to him that certain real estate would not be forfeited. However, even if counsel's alleged representation was constitutionally deficient, which the Court does not so find, petitioner has failed to demonstrate that he was prejudiced. As noted above, the Court of Appeals found that petitioner's comments at the plea hearing indicate that he realized that the government made no such promise as a term of his plea agreement and that no such promise caused him to change his plea.

Petitioner also argues that counsel filed no pre-trial motions for discovery, thereby allegedly failing to conduct an independent investigation of the case. Petitioner contends that, had counsel conducted such discovery, he would have been able to determine whether "a plausible line of defense existed ... or whether to negotiate a plea agreement." Petition, p. 16. He further contends that counsel's failure to investigate also affected sentencing counsel's performance in that he failed to call any witnesses to rebut the government's witness regarding relevant conduct. Petition, pp. 17, 19. However, petitioner does not note any potential defenses that counsel failed to uncover, nor does he indicate any potential witness testimony that would rebut testimony offered by the government regarding relevant conduct. The Court notes that counsel thoroughly cross-examined the government's sole witness with respect to relevant conduct and prepared a sentencing brief on the issue as well.² Furthermore, counsel did in fact file several pre-trial motions, including a motion for bill of particulars, motion for order to preserve investigative notes and tapes, motion for notice of other crimes, and motion for release of Giglio materials. In any event, the mere fact that a motion for discovery was not filed...