United States v. Parada-Tallamantes, Case No.: 3:12cr17/LAC/EMT
| Decision Date | 06 April 2017 |
| Docket Number | Case No.: 3:12cr17/LAC/EMT,Case No.: 3:14cv665/LAC/EMT |
| Parties | UNITED STATES OF AMERICA v. GILBERTO PARADA-TALLAMANTES |
| Court | U.S. District Court — Northern District of Florida |
This matter is before the court upon Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 72). The Government filed a response (ECF No. 75), and Defendant filed a reply (ECF No. 79). 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 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 8(a) and (b), Rules Governing Section 2255 Cases.
Defendant was charged in two counts of a three-count indictment with conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(b)(1)(A)(ii) and possession with intent to distribute 500 grams or more of cocaine on a date certain (ECF No. 1). Represented by appointed counsel E. Brian Lang, Esq., Defendant entered a guilty plea pursuant to a written plea agreement and supplement thereto (ECF Nos. 35, 36). The plea agreement provided that Defendant faced minimum mandatory terms of ten-years imprisonment on Count One and five years on Count Three (ECF No. 35 at 1-2). It also provided that the district court's discretion in imposing sentence was "limited only by the statutory maximum sentence and any mandatory minimum sentence prescribed by statute for the offenses," that the U.S. Attorney reserved the right "to present evidence and make argument pertaining to the application of the sentencing guidelines," that the sentence was not "subject to accurate prediction," and that "a sentence greater than anticipated shall not be grounds for withdrawal of the Defendant's plea" (ECF No. 35 at 3-4).
The second final Presentence Investigation Report ("PSR") held Defendant accountable for 1,522.47 kilograms of marijuana, corresponding to a base offense level of 32 (ECF No. 43, PSR ¶ 41). Defendant was characterized as an organizer or leader of an activity involving five or more participants, and thus received a four-level increase pursuant to § 3B1.1(a) (ECF No. 43, PSR ¶ 44). After a three-level downward adjustment for acceptance of responsibility, his total offense level was 33 (ECF No. 43, PSR ¶¶ 47, 50). Defendant's criminal history category was II, and the applicable advisory guidelines range was 151 to 188 months (ECF No. 43, PSR ¶¶ 83). At sentencing, after hearing testimony on the issue the court sustained Defendant's objection to the four-level leadership-role enhancement, instead applying the three-level managerial enhancement in § 3B1.1(b) (ECF No. 64 at 17-18). The revised guidelines range was 135 to 168 months, and the court sentenced Defendant to concurrent terms of 165 months on each count (ECF No. 64 at 18, 21-22; ECF No. 51).1
Defendant's notice of appeal and incorporated certificate of service, signed by Attorney Lang, was dated June 25, 2012, but was not docketed until August 15, 2012 (ECF No. 54). The appeal proceeded, and the record reflects that on April 12, 2013, the Eleventh Circuit removed Mr. Lang as counsel of record after he failed tocomply with the rules and communications of the court and referred counsel for disciplinary consideration (ECF No. 68). The Eleventh Circuit appointed Thomas A. Burns, Esq., to represent Defendant via letter dated July 23, 2013 (ECF No. 69).
Defendant's new attorney argued that the district court had erred by imposing the three-level enhancement for being a manager or supervisor of more than five participants pursuant to U.S.S.G. § 3B1.1(b). The appellate court found that this decision was amply supported by the record and affirmed his sentence (ECF No. 70 at 3-7).
In the present motion, Defendant raises three grounds for relief. He contends that the Government breached the plea agreement when it advocated for the role enhancement, that due to the application of this enhancement his sentence was in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013), and that counsel failed to file an appeal as requested. The Government opposes the motion.
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. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); 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) ().
Because a motion to vacate under section 2255 is not a substitute for direct appeal, 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) 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); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). 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, 566 U.S. 156, 162-63 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). A defendant will be required to show that but for counsel's errors, he would not have pleaded guilty and would have instead insisted on proceeding to trial. Id. at 163 (quoting Hill, 474 U.S. at 59). A defendant's "after the fact testimony concerning his desire to plead, without more, is insufficient to establish" prejudice. Pericles v. United States, 567 F. App'x 776, 782 (11th Cir. 2014) (quoting Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)); Rosin v. United States, 786 F.3d 873 (11th Cir. 2015). A defendant must "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). 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) (...
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