United States v. Olvera
| Decision Date | 22 May 2013 |
| Docket Number | CIVIL ACTION H-11-1740,CRIMINAL NO. H-09-300 |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent. v. JORGE OLVERA, Defendant/Movant |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court in the above referenced cause are (1) Movant Jorge Olvera's ("Olvera's") § 2255 motion to vacate, set aside or correct sentence (instrument #1 in H-11-CV-1740; #54 in H-09-CR-300); (2) the United States's motion to dismiss (#65 in H-09-CR-300); and (3) United States Magistrate Judge Frances Stacy's memorandum and recommendation (#67 in H-09-CR-300) that the government's motion to dismiss be granted and Olvera's § 2255 motion be denied. Olvera did not file any objections to the Magistrate Judge's memorandum and recommendation.
A pro se complaint is "held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 521 (1972). Pro se pleadings are liberally construed. Haines, 404 U.S. at 521. Nevertheless pro se litigants must provide sufficient facts in support of their claims; "mere conclusory allegations on a criticalissue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). "Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court), unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1009, 1011 (5th Cir. 1983); see also U.S. v. Onwuasoanya, 180 F.3d 261 (Table), No. 96-20877, 1999 WL 274479, *2 (5th Cir. Apr. 16, 1999). "[A] district court does not commit error when it disposes of a habeas petitioner's claims without holding a full-fledged hearing when those claims are unmeritorious, conclusory, and wholly unsupported by the record." Id. at 1011 n.2; id.
On July 3, 2009 Olvera pled guilty without a written plea agreement to and was convicted of illegal reentry by a previously deported alien after an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2).1
Olvera's records show he had numerous prior convictions, including unauthorized use of a motor vehicle, assault, failure to identify to police officer, carrying a weapon and evading arrest. His first aggravated felony conviction in Harris County, Texas was for possession with intent to deliver cocaine, for which he was sentenced on May 3, 2003 to five years of imprisonment.2 He was deported to Mexico on January 14, 2005. He returned to the UnitedStates illegally around August 2005. He was found in Huntsville, Texas on July 18, 2006 and a record search revealed no evidence that he had obtained consent before March 2003 from the U.S. Attorney general to reapply for admission into the United States and no evidence that he had obtained corresponding consent after February 2003 from the Secretary of the Department of Homeland Security. On May 24, 2006, he was convicted in Harris County, Texas for possession with intent to deliver cocaine and evading arrest and was sentenced to two years' confinement. Immigrations and Customs Enforcement officials found Olvera using the name George Ponce Olvera at the Texas Department of Criminal Justice--Institutional Division in Huntsville, Texas. He was paroled from state custody to an immigration detainer on May 5, 2009.
Relating to the instant § 2255 motion, for pleading guilty to violating 8 U.S.C. § 1326(a) and (b)(2) on November 19, 2009 Olvera was sentenced to 96 months in the custody of the Bureau of Prisons and to a term of three years of Supervised Release. A special assessment of $100 was remitted on the government's motion. Olvera appealed his sentence. His attorney filed an Anders brief3 stating there were no non-frivolous issues for appeal. Olvera responded with a letter claiming that the district court misinformed him of the possibility of deportation and did not consider whether his previous State of Texas convictions were valid. The Fifth Circuitdismissed the appeal, stating that it could not address Olvera's ineffective assistance of counsel claims on direct appeal when the claim had not been raised in the district court. U.S. v. Olvera, 464 Fed. Appx. 191 (5th Cir. Dec. 1, 2010)(per curiam).
The Sixth Amendment guarantees a defendant the right to have counsel present at all "'critical' stages of the criminal proceedings" against them. Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012). The Sixth Amendment right to counsel extends to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), citing Missouri v. Frye, 132 S. Ct. at 1405, and Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). Moreover, the two-prong test under Strickland v. Washington, 466 U.S. 668 (1984), "'applies to challenges to guilty pleas based on ineffective assistance of counsel.'" Id., quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985).
To establish that counsel was ineffective, the defendant must prove: (1) "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland, 466 U.S. at 687 (the "performance" prong), and (2) "that the deficient performance prejudiced the defense" (the "prejudice" prong). Id. The reviewing court need not consider both prongs if the court finds that the defendant has failed to prove either. Id. For the deficient performance prong, counsel's performance must be examined "on the facts of the particular case, viewed as of the time of counsel's conduct" andthe defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured according to "prevailing professional norms." Id. at 690, 688. To prove that trial counsel's deficient performance prejudiced the defense, the defendant must demonstrate 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of a criminal trial]." Id. This heavy burden requires a "substantial," not merely a "conceivable," likelihood of a different result. Harrington v. Richter, 131 S. Ct. 770, 787 (2011); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011). In deciding whether the result would have been different, "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695; Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012), cert. denied, ___ S. Ct. ___, No. 12-7258, 2011 WL 598586 (S. Ct. Feb. 19, 2013).
In the context of a guilty plea, the Supreme Court and the Fifth Circuit have held that a defendant must demonstrate that counsel provided ineffective assistance and that but for counsel's errors, the defendant would not have pleaded guilty, but would have gone to trial. Hill, 474 U.S. 52; Joseph v. Butler, 838 F.2d 786, 792 (5th Cir. 1988). The defendant must provide more than mereallegations to that effect. Joseph, 838 F.2d at 791. Furthermore, under the prejudice prong of Strickland, even where counsel rendered totally ineffective assistance to a defendant entering a guilty plea, the conviction should be upheld if the plea was voluntary. DeVille v. Whitley, 21 F.2d 654, 659 (5th Cir. 1994).
On a claim of ineffective assistance of counsel, the court is "highly deferential" and there is a strong presumption that counsel's performance was reasonable or "might be considered sound trial strategy." Strickland, 466 U.S. at 689. Given this presumption, the court is "'required not simply to give [the] attorneys the benefit of the doubt, . . . but to affirmatively entertain the range of possible reasons [the defendant's] counsel may have had for the proceeding as they did.'" Clark v. Thaler, 673 F.3d 410, 421 (5th Cir. 2012), quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). "'A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." U.S. v. Jones, 287 F.3d 325, 331 (5th Cir. 2002)(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)), cert. denied, 525 U.S. 809 (1998). Courts must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.
A guilty plea that is not knowingly, voluntarily, and intelligently entered is invalid. U.S. v. Guerra, 94 F.3d 989, 994 (5th Cir. 1996). A federal habeas court will uphold a guilty plea "if it is shown by the record . . . that a defendant understood the charge and its consequences when he pled guilty." Deville, 21 F.3d at 657, citing Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.), cert. denied, 474 U.S. 838 (1985). To determine the validity of a guilty plea, courts must decide "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill, 474 U.S. at 56; U.S. v. Juarez, 672 F.3d 381, 385-86 (5th Cir. 2012). A plea is intelligent if the defendant understood the nature and substance of the charges against him and not necessarily whether he understood their technical legal effect. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995), citing Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 503 U.S. 988 (1992); U.S. v. Suarez, 155 F.3d 521, 524-25 (5th Cir. 1998). A guilty plea is "knowing" when the defendant understands "the consequences" of a guilty plea, i.e., he knows the maximum prison term and fine for the offense charged. Guerra, 94 F.3d at 995. A guilty plea in not voluntary if it is obtained by threats,...
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