United States v. Hernandez-Robles, CRIMINAL ACTION NO. H-13-121
| Decision Date | 03 March 2017 |
| Docket Number | CRIMINAL ACTION NO. H-13-121,CIVIL ACTION NO. H-16-1618 |
| Parties | UNITED STATES OF AMERICA v. JUAN HERNANDEZ-ROBLES |
| Court | U.S. District Court — Southern District of Texas |
Juan Hernandez-Robles filed a motion under 28 U.S. § 2255, raising ineffective assistance of counsel for "failing to negotiate 'Fast Track' program in plea deal, pursuant to 5K3.1," and "ineffective assistance of counsel for involuntary plea." (Docket Entry No. 39). The government has responded, arguing that Hernandez-Robles's claims are time-barred, insufficiently pleaded, and substantively meritless. They government has moved for summary judgment. (Docket Entry No. 45).
On March 6, 2013, Hernandez-Robles was indicted on one count of illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). He pleaded guilty on May 1, 2013, without a plea agreement. On August 20, 2013, the court sentenced Hernandez-Robles to a 69-month prison term, to run concurrently to a revocation sentence relating to a prior conviction. Hernandez-Robles filed a notice of appeal, which the Fifth Circuit dismissed after Hernandez-Robles's counsel filed an Anders brief. On May 31, 2016, Hernandez-Robles filed this § 2255 motion.
Relief 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." United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). This procedural bar does not apply to claims that could not have been raised on direct appeal, such as an ineffective assistance of counsel claim. See Massaro v. United States, 538 U.S. 500 (2003) ().
Hernandez-Robles is representing himself, and his pleadings are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per curiam) (quotation marks and citations omitted). The court liberally construes his filings. See Haines v. Kerner, 404 U.S. 519, 521 (1972). But even unrepresented movants must provide sufficient facts to support their claims. See United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). "[M]ere conclusory allegations on a critical issue are insufficient to raise a constitutional issue," id., and "[a]bsent 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," Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
If the motion and record show that no relief on the § 2255 motion is appropriate, an evidentiary hearing is unnecessary. United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983). Summary judgment is proper if there is no genuine dispute of material fact and the movant (here the § 2255 respondent) is entitled to judgment as a matter of law. Liu v. Lynch, 149 F. Supp. 3d 778, 784-85 (S.D. Tex. Mar. 3, 2016) (Rosenthal, J.); Fed. R. Civ. P. 56(a).
A § 2255 motion is subject to a one-year limitations period that begins to run on the date the judgment of conviction becomes final. "[F]or federal criminal defendants who do not file a petition for writ of certiorari with [the Supreme Court] on direct review, § 2255's one-year limitation period start to run when the time for seeking such review expires." Clay v. United States, 537 U.S. 522, 532 (2003). Hernandez-Robles's conviction became final on July 15, 2014. S. Ct. R. 13. His one-year period to file a timely § 2255 motion expired on July 15, 2015. He did not file the motion until May 2016. Because Hernandez-Robles did not file his § 2255 motion until after the limitations period in § 2255(f)(1) expired, and no exception or extension applies, his motion is untimely. See United States v. Ramirez, 2014 WL 3665289, at *6 (S.D. Tex. July 22, 2014) ().
The record also undermines Hernandez-Robles's claims. The standard for judging the performance of counsel set out in Strickland v. Washington, 466 U.S. 668 (1984), requires movant to prove both deficient performance and resulting prejudice. Strickland, 466 U.S. at 697. Deficient performance is established by "show[ing] that counsel's representation fell below an objective standard of reasonableness." Id. at 688. To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; see also United States v. Kinder, 167 F.3d 889, 893 (5th Cir. 1999). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. On federal habeas review, scrutiny of counsel's performance "must be highly deferential," and the Court will "indulge a strong presumption that strategic or tactical decisions made after an adequate investigation fall within the wide range of objectivelyreasonable professional assistance." Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999) (citing Strickland, 466 U.S. at 689). "A court must indulge a 'strong presumption' that counsel's conduct falls within the range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 701, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (citing Strickland, 466 U.S. at 689). Federal habeas courts presume that trial strategy is objectively reasonable unless it is clearly proven otherwise. Strickland, 466 U.S. at 689.
The second prong of the Strickland test looks to the prejudice caused by counsel's deficient performance. This requires "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." United States v. Mullins, 315 F.3d 449, 456 (5th Cir. 2002) (quoting Strickland, 466 U.S. at 687). "[T]he defendant must show that counsel's errors were prejudicial and deprived defendant of a 'fair trial, a trial whose result is reliable.'" United States v. Baptiste, 2007 WL 925894, at *3 (E.D. La. Mar. 26, 2007) (quoting Strickland, 466 U.S. at 687). "This burden generally is met by showing that the outcome of the proceeding would have been different but for counsel's errors." Id. A defendant must satisfy both prongs of the Strickland test to succeed on an ineffective assistance claim. See Strickland, 466 U.S. at 697. A court deciding an ineffective assistance of counsel claim is not required to address these prongs in a particular order. Id. If it is possible to dispose of an ineffective assistance of counsel claim without addressing both prongs, "that course should be followed." Id.
The Strickland standard applies to ineffective-assistance challenges to convictions based on guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985). With respect to the prejudice prong of Strickland, the defendant must show "that there is a reasonable probability that, but for counsel'serrors, he would not have pleaded guilty and would have insisted on going to trial." United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000). (quoting Lockhart, 474 U.S. at 59).
Hernandez-Robles fails to set out a factual basis for his claims. Absent information about what his counsel did or how that action was ineffective or constitutionally deficient, no relief can be granted. Hernandez-Robles does not explain how his counsel should have negotiated a fast-track plea deal or whether he met the requirement for that relief.
Guidelines § 5K3.1 provides that "[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides." U.S.S.G. § 5K3.1. Whether a particular defendant is "fast-tracked" under this program "is in the sole discretion of the United States Attorney." Flores-Jimenez v. United States, 2014 WL 1338573, at *4 (S.D. Tex. Mar. 31, 2014). Neither Hernandez-Robles nor his attorney had "the sole ability to determine whether to participate" in a § 5K3.1 fast-track program; nor is Hernandez-Robles "automatically entitled to benefit from the program." United States v. Espinosa-Contreras, 2013 WL 33667276, at *3 (S.D. Tex. July 3, 2013). Any opportunity that Hernandez-Robles might have to participate in a fast-track program must be "initiated by the government." Id. (Citing United States v. Gomez-Herrara, 523 F.3d 554, 561 (5th Cir. 2008)).
Hernandez-Robles's trial counsel did not control the process for him to receive a fast-track reduction. Accordingly, counsel could not have been (and was not) constitutionally deficient in not negotiating a § 5K3.1 reduction for Hernandez-Robles. "Because a defendant may not control whether to participate in the [fast-track] program, and the Court may not grant such a motion by the defendant or his counsel, [Hernandez-Robles] has not shown that he was prejudiced by counsel'sfailure to [negotiate] a downward departure on this basis." Espinosa-Contreras, 2013 WL 33667276 at *3.
Hernandez-Robles's criminal history likely foreclosed a § 5K3.1 fast-track program. The Department of Justice's Policy Memorandum on Early Disposition or "Fast-Track" Programs conditions defendant eligibility on the defendant's lack of prior violent felony convictions (including drug trafficking and firearm offenses) and on the number of prior deportations and prior convictions for illegal reentry under § 1326. Hernandez-Robles's criminal history includes convictions for armed robbery of a dwelling, robbery with a deadly weapon, and illegal reentry. PSR at 6-7 (¶¶ 26, 29). As the court noted during sentencing, Hernandez-Robles has three...
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