United States v. Clark-Castaneda
| Decision Date | 07 July 2015 |
| Docket Number | Case No. 3:12cv584/LAC/CJK,Case No. 3:10cr47/LAC/CJK |
| Court | U.S. District Court — Northern District of Florida |
| Parties | UNITED STATES OF AMERICA v. JESUS CLARK-CASTANEDA |
This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 183). The Government has filed a response (doc. 187) and Defendant has filed a reply. (Doc. 189). 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 and four others were charged in a two count superseding indictment with (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, and (2) possession with intent to distribute 500 grams or more of cocaine. (Doc. 40). Defendant and co-defendant Gutierrez together sold multiple kilograms of cocaine to individuals in Fort Walton and Pensacola in 2009 and 2010. Defendant pleaded guilty on July 12, 2010, represented by retained counsel Glenn M. Swiatek. (Doc. 175). There was no written plea agreement, and in fact, Defendant did not enter his plea until after a jury had been selected. (Doc. 175 at 6, 15).
A Presentence Investigation Report ("PSR") was prepared for sentencing. In the original version of the PSR, Defendant was held accountable for 17.285 kilograms of cocaine, corresponding to a base offense level of 34. (Doc. 103, Draft PSR ¶ 48). There were no adjustments and Defendant's criminal history category was I. (Id. at ¶¶ 49-57, 61). Defendant filed no objections. An addendum to the final version of the PSR reflects that the Government conceded that the drug weight attributable to a co-defendant was less than 15 kilograms and the probation office made a similar adjustment in Defendant's case, thus reducing his base and total offense levels to 32. (Doc. 127, Final PSR ¶¶ 48, 57, 101). The applicable guidelines imprisonment range was 121 to 151 months.
The defense filed no written objections to either version of the PSR. At sentencing, when queried about objections, counsel noted that his client was "certainly less culpable than anybody else." (Doc. 176 at 2). Counsel also stated that he was "arguing for a deduction based on the quantity of cocaine that is attributed to him." (Id. at 3). The Government asked for a continuance for the defense to put its objections in writing, at which point counsel clarified that the defense was prepared to stipulate to Defendant's accountability for the same quantity of cocaine attributed to co-defendant Gutierrez. (Id. at 4). After the parties clarified that the drug amount was not the 17.285 kilograms set forth in the draft PSR, but between five and fifteen kilograms as set forth in the addendum, the defense agreed to that stipulation. (Id. at 4-5). Counsel again argued that Defendant was less culpable than other defendants in the case. In addition, he noted that the reason Defendant did not qualify for the safety valve was because Defendant chose not to cooperate due to concern about putting his and his family's lives in jeopardy. (Id. at 5-6). Counsel's comparison of his client's situation to the circumstances of co-defendant Gutierrez, whom counsel believed to be the ringleader, was unavailing, as the court noted that Gutierrez had received credit for acceptance while Defendant had not.2 (Id. at 7). In response, the Government noted that its reading of the PSR suggested that Defendant and Gutierrez were equally culpable, and further, that the perceived threat to Defendant and his family was a result of his own actions. (Id. at 7). The court sentenced Defendant to a term of 136 months imprisonment, at the mid-point of the advisory guidelines range. (Id. at 8).
Defendant filed a pro se notice of appeal. (Doc. 141). The Eleventh Circuit dismissed his appeal for want of prosecution, but later reinstated it and allowed counsel to withdraw. (Docs. 156, 164, 167). Attorney Elaine Mittleman raised a single issue in Defendant's behalf on appeal, arguing that his within-guidelines sentence was substantively unreasonable due to disparities with the 48 to 180 months sentences received by his co-defendants. (Doc. 178). The Eleventh Circuit found that Defendant was not similarly situated to co-defendant Gutierrez, with whom Defendant attempted to compare himself, found no abuse of discretion with respect to the sentence imposed, and affirmed Defendant's sentence. (Id.)
In the present motion, Defendant claims that counsel was constitutionally ineffective in myriad respects. The Government opposes the motion in its entirety.
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" exception recognized 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 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 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) actual prejudice 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). Strickland's two part test also applies to guilty pleas. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). 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; ...
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