U.S. v. Lumbreras-Amaro

• Citation: 627 F.Supp.2d 752
• Decision Date: 06 November 2008
• Docket Number: Civil Action No. H-08-1488.,Criminal No. H-07-0055.
• Parties: UNITED STATES of America v. Rafael LUMBRERAS-AMARO.
• Court: U.S. District Court — Southern District of Texas

Page 752

627 F.Supp.2d 752

UNITED STATES of America v. Rafael LUMBRERAS-AMARO.

Criminal No. H-07-0055.

Civil Action No. H-08-1488.

United States District Court, S.D. Texas, Houston Division.

November 6, 2008.

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COPYRIGHT MATERIAL OMITTED

Rafael Lumbreras-Amaro, Edgefield, SC, pro se.

James L. Turner, US Attorneys Office, Houston, TX, for United States of America.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Pending before the Court is a motion filed by the defendant, Rafael Lumbreras-Amaro ("Lumbreras"), to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. # 48). The government has answered with a motion to dismiss, arguing that Lumbreras is not entitled to relief under § 2255. (Doc. # 50). Lumbreras has filed a reply. (Doc. # 51). The Court has carefully reviewed all pertinent matters in this criminal case. Based upon this review, the Court's clear recollection of the relevant proceedings, and application of governing legal authorities, the Court denies the defendant's motion and dismisses the corresponding civil action (No. H-08-1488) for reasons set forth below.

I. BACKGROUND AND PROCEDURAL HISTORY

On February 21, 2007, a federal grand jury in this district returned an indictment against Lumbreras, charging him with illegal reentry into the United States following deportation for an aggravated felony in violation of 8 U.S.C. §§ 1326(a), 1326(b)(2). On April 25, 2007, Lumbreras entered a plea of guilty to the charges against him. The Court instructed the Probation Department to prepare a presentence report ("PSR") for the purpose of determining punishment under the advisory United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). As summarized briefly below, the PSR showed that Lumbreras, a native and citizen of Mexico, had a lengthy criminal record and that he had been deported on three separate occasions prior to his most recent return to the United States.

On November 27, 1995, Lumbreras was convicted of evading arrest in Harris County cause number 9550535 and sentenced to 12 days of confinement. On January 17, 1997, Lumbreras was convicted of burglarizing a motor vehicle in Harris County cause number 9651405 and sentenced to 240 days of confinement. On January 17, 1997, Lumbreras was also convicted of evading arrest in Harris County cause number 9651406 and sentenced to 180 days of confinement. Thereafter, Lumbreras was deported from the United States to Mexico on April 16, 1997.

Lumbreras returned to the United States shortly after his deportation. On July 28, 1997, Lumbreras was convicted of possession of marijuana in Harris County cause number 9730920 and sentenced to 30 days of confinement. On August 15, 1997, Lumbreras was deported from the United States to Mexico for a second time.

Lumbreras returned to the United States again, only to be arrested and charged with an aggravated felony and a drug-related offense. On February 9, 1998, Lumbreras was convicted of aggravated assault with a deadly weapon in Harris County cause number 772188 and sentenced to three years' imprisonment. On that same day, Lumbreras was also convicted of possession of a controlled substance in Harris County cause number 769244 and sentenced to serve 180 days of confinement. Subsequently, on January 9, 2001, Lumbreras was deported from the United States to Mexico for a third time.

Undeterred by three deportations, Lumbreras returned to the United States. On January 22, 2007, immigration officials encountered Lumbreras in Houston, Texas, where he was in custody at the Harris County Jail. Lumbreras was serving a thirty-day sentence that he received on January 10, 2007, in Harris County cause number 14272000, for evading arrest. By returning to the United States without obtaining the requisite permission, Lumbreras violated 8 U.S.C. § 1326(a). Because one of his prior deportations followed a conviction for an aggravated felony, Lumbreras was also subject to punishment under 8 U.S.C. § 1326(b)(2).

Using the relevant Sentencing Guidelines provision for illegal re-entry, the Probation Department determined that Lumbreras's base offense level was 8. See U.S.S.G. § 2L1.2(a). Because of his prior conviction for an aggravated felony, the Probation Department recommended a 16-level increase, pursuant to § 2L1.2(b)(1)(A) of the Sentencing Guidelines, increasing his offense level to 24. The Court granted a 3-level decrease for acceptance of responsibility, reducing his total offense score to 21. Because Lumbreras had 9 criminal history points, placing him in Criminal History Category IV, he faced a range of imprisonment from 57-71 months. After considering all of the parties' arguments, the Court sentenced Lumbreras below the applicable Guidelines range to serve a total of 56 months in prison, giving him credit for a month spent in custody of immigration officials. (Doc. # 32, Judgment; Doc. #41, Sentencing Transcript, at 7).

On direct appeal, Lumbreras argued that the sentence imposed under 8 U.S.C. § 1326(b) violated due process because it resulted in a 16-level increase based on facts not alleged in the indictment. The Fifth Circuit observed that his arguments were foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b) set forth sentencing factors rather than separate offenses such that an indictment in an illegal-reentry case need not allege a defendant's prior convictions.¹ See United States v. Lumbreras-Amaro, 257 Fed. Appx. 824 (5th Cir.2007) (No. 07-20600). Subsequently, the United States Supreme Court denied Lumbreras's petition for a writ of certiorari. See Lumbreras v. United States, ___ U.S. ___, 128 S.Ct. 1489, 170 L.Ed.2d 309 (2008).

Lumbreras now argues that he is entitled to relief under 28 U.S.C. § 2255 because his sentence is unconstitutional and he was denied effective assistance of counsel at his sentencing proceeding. The government has filed a motion to dismiss, arguing that Lumbreras is not entitled to relief. The parties' contentions are discussed below under the governing standard of review.

II. STANDARD OF REVIEW

To obtain collateral relief pursuant to 28 U.S.C. § 2255, a defendant "must clear a significantly higher hurdle" than the standard that would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "Following a conviction and exhaustion or waiver of the right to direct appeal, [courts] presume a defendant stands fairly and finally convicted." United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir.1998). "As a result, review of convictions under [§ ] 2255 ordinarily is limited to questions of constitutional or jurisdictional magnitude, which may not be raised for the first time on collateral review without a showing of cause and prejudice." Frady, 456 U.S. at 166, 102 S.Ct. 1584. To establish "cause," a defendant must show that some external impediment prevented him from raising his claim on direct appeal. See United States v. Shaid, 937 F.2d 228, 233 (5th Cir.1991) (quoting Frady, 456 U.S. at 170, 102 S.Ct. 1584). In order to establish "prejudice," the defendant must demonstrate "an actual and substantial disadvantage," such that the integrity of the entire underlying proceeding was infected with "error of constitutional dimension." Id.

"Other types of error may not be raised in a collateral attack, unless the defendant demonstrates that `the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice.'" United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.1992) (quoting Shaid, 937 F.2d at 232 n. 7). "If the defendant does not meet this burden ..., he is procedurally barred from attacking his conviction." United States v. Drobny, 955 F.2d 990, 995 (5th Cir.1992). Importantly, however, this procedural bar does not apply to claims that could not have been raised on direct appeal, such as those for ineffective assistance of counsel, "since no opportunity existed [before the district court] to develop the record on the merits of the allegations." United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987); see also Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

Lumbreras proceeds pro se in this matter. "`[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir.1999). Thus, pro se pleadings are entitled to a liberal construction that includes all reasonable inferences which can be drawn from them. See Haines, 404 U.S. at 521, 92 S.Ct. 594; see also Pena v. United States, 122 F.3d 3, 4 (5th Cir.1997). However, pro se litigants 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 to raise a constitutional issue." Id. (citing United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir.1989)); see also Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.1983) ("Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition ... to be of probative evidentiary value.").

III. DISCUSSION

A. Ineffective Assistance of Counsel

Lumbreras argues that he is entitled to relief from his conviction because he was denied effective assistance of counsel in connection with his sentencing proceeding. Claims for ineffective assistance of counsel are analyzed under the standard set forth in Strickland v....