United States v. Cardon-Cortez
| Decision Date | 12 March 2015 |
| Docket Number | Case No. 3:07cr135/RV/CJK,Case No. 3:12cv186/RV/CJK |
| Parties | UNITED STATES OF AMERICA v. ARMAND CARDON-CORTEZ |
| Court | U.S. District Court — Northern District of Florida |
This matter is before the court upon Defendant's third amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and supporting memorandum of law. (Docs. 278, 279). The Government has filed a response (doc. 286) and Defendant has filed a reply. (Doc. 287). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that Defendant has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules Governing Section 2255 Cases 8(a) and (b).
Defendant was charged in a seven count indictment with conspiracy to possess with intent to distribute five (5) kilograms or more of cocaine and fifty (50) grams or more of methamphetamine (Count One), two substantive counts of possession with intent to distribute cocaine and methamphetamine (Counts Two and Four), two counts of carrying and possessing a firearm in furtherance of the drug trafficking offenses charged in Counts One and Four (Counts Three and Five), and two counts of being an illegal alien in possession of firearms (Counts Six and Seven). (Doc. 18). After a two-day trial, a jury found Defendant guilty as charged. (Doc. 82).
Defendant was sentenced on May 15, 2008 to a total term of 595 months imprisonment. His sentence was comprised of a term of 235 months imprisonment on Counts One, Two, and Four, concurrent terms of 120 months imprisonment on Counts Six and Seven, a consecutive term of 60 months imprisonment on Count Three, and a 300 month term of imprisonment on Count Five to run consecutively to the other counts. (Doc. 113).
Defendant appealed, and his attorney filed an Anders brief. On March 27, 2009, the Eleventh Circuit issued an opinion stating that its independent review of the entire record confirmed that there were no issues of arguable merit on appeal, and granting counsel's motion to withdraw. (Doc. 180). The mandate was recalled on December 22, 2009 after Defendant moved to reopen his appeal. (Doc. 184). On May 6, 2010, the appellate court re-issued the mandate and allowed counsel towithdraw. (Doc. 192). The Supreme Court denied certiorari on October 13, 2011. (Doc. 216).
Before the denial of certiorari, Defendant filed an untitled motion in which he complained about counsel's handling of his appeal. (Doc. 211). On October 13, 2011, the court ordered Defendant to file an amended § 2255 motion on the proper court form, or to withdraw the previously filed motion. (Doc. 215). Defendant appealed this order (doc. 217), and the Eleventh Circuit dismissed his appeal for lack of jurisdiction on February 21, 2012. (Doc. 230). Defendant then moved, in March of 2012, to "reinstate" his § 2255 motion. (Doc. 233). The court granted the request only to the extent that Defendant would be permitted to file an amended § 2255 motion, as previously instructed, within 30 days. (Doc. 234). Defendant moved to withdraw his § 2255 motion, presumably referring to document 211, his untitled motion (doc. 241), and the district court denied the motion, noting that there was no pending § 2255 motion to withdraw. (Doc. 243).
Defendant filed a § 2255 motion on the proper court form in April of 2012 (doc. 246), followed by an amended § 2255 motion in May of 2012. (Doc. 253). Multiple other motions were denied before Defendant filed a memorandum in support of his § 2255 motion. (Doc. 263). The court issued three orders regarding the lack of service copy (docs. 264, 266, 268) and finally entered an order directing Defendant to file a second amended § 2255 motion, or a service copy of his previous submissions, or payment for the clerk to make a copy thereof. (Doc. 270). Defendant filed a second amended motion to vacate, a supporting memorandum of law, and a motion for summary judgment (docs. 271-273), after which he was again directed to amend or provide a service copy of same. (Doc. 274).Defendant complied with this order, submitting the third amended § 2255 motion and memorandum of law currently pending before the court.2
Defendant raises ten grounds for relief in his third amended § 2255 motion. The enumerated grounds include nine substantive grounds for relief and a claim that counsel was constitutionally ineffective for his failure to pursue or argue each of these issues. The Government contends that Defendant's substantive claims are procedurally barred and that his ineffective assistance of counsel claims are conclusory and hence without merit.
Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The "fundamental miscarriage of justice" exceptionrecognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent . . . ."
The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) ().
Furthermore, a motion to vacate under section 2255 is not a substitute for direct appeal, and issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234-35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is "'available' on direct appeal when its merits can be reviewed without further factual development." Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actualprejudice resulting from the alleged error, that is, alternatively, that he is "actually innocent." Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that "some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.
Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a § 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d, 1, 8 (11th Cir. 2012). In order to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000) ().
In determining whether counsel's conduct was deficient, this court must, with much deference, consider "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688; see also Dingle v. Sec'y for Dep'tof Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to review counsel's performance in a highly deferential manner and "must indulge a strong presumption that counsel's conduct fell...
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