United States v. Viera, CRIMINAL ACTION No. 08-20106-03-KHV

• Decision Date: 04 August 2011
• Docket Number: CIVIL ACTION No. 10-2594-KHV,CRIMINAL ACTION No. 08-20106-03-KHV
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOSE VIERA, Defendant.

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE VIERA, Defendant.

CRIMINAL ACTION No. 08-20106-03-KHV
CIVIL ACTION No. 10-2594-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: August 4, 2011

MEMORANDUM AND ORDER

On April 22, 2009, defendant pled guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, two counts of distribution of five grams or more of methamphetamine and one count of use of a communication facility to facilitate the distribution of methamphetamine. On December 8, 2009, the Court sentenced defendant to 324 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #172) filed October 29, 2010. For reasons stated below, the Court overrules defendant's motion.

Analysis

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

Liberally construed, defendant's Section 2255 motion asserts that his first attorney, John Duma, was ineffective because he did not inform defendant that (1) he would be deported as a collateral consequence of his conviction and (2) as a deportable alien, he would not be eligible for

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a reduction in his sentence upon completion of the Residential Drug Abuse Program ("RDAP"). See Motion Under 28 U.S.C. § 2255 (Doc. #172) at 4; Memorandum Of Facts And Law In Support Of Motion To Vacate, Set Aside, Or Correct Sentence (Doc. #173) filed October 29, 2010 at 2. Defendant also asserts that his second attorney, Alex McCauley, was ineffective because (1) he did not file a motion to withdraw the guilty plea before sentencing and (2) he did not file an appeal as instructed. See Motion Under 28 U.S.C. § 2255 (Doc. #172) at 5.¹

To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) the deficient performance was so prejudicial that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To meet the first element, i.e.. counsel's deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In other words, defendant must prove that counsel's performance was "below an objective standard of reasonableness." United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). The Supreme Court recognizes, however, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988), cert. denied, 489 U.S. 1089

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(1989). As to the second element, the Court must focus on the question "whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

I. Failure To Inform Defendant That He Would Be Deported

Defendant, who is a citizen of Mexico and an illegal immigrant to the United States, argues that Mr. Duma was ineffective because he did not tell defendant that as a collateral consequence of his conviction, he would be deported. See Memorandum (Doc. #173) at 4-5. Counsel renders deficient performance if he fails to advise a noncitizen client that a plea of guilty carries a risk of deportation. See Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). In an affidavit, Mr. Duma states that he does not recall precisely what he told defendant about deportation, but he believes that he told defendant that he would be deported. In contrast, defendant states that Mr. Duma never informed him that deportation was a collateral consequence of his guilty plea. See Jose Viera Declaration Dated October 25, 2010 at 2, attached to Memorandum (Doc. #173). The Court need not resolve this factual dispute, however, because defendant cannot establish prejudice.

To show prejudice in the guilty plea context, defendant must show a reasonable probability that but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); Miller v. Champion, 262 F.3d 1066, 1068-69 (10th Cir. 2001). As part of his proof, defendant must show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 130 S. Ct. at 1485 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)). Defendant asserts that he suffered prejudice because had he known that he would be deported as a result of his conviction, he would not have entered a plea of guilty and would have

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insisted on going to trial. See Memorandum (Doc. #173) at 5. Defendant's mere assertion that he would have insisted on trial but for counsel's errors, although necessary, is ultimately insufficient to entitle him to relief. Miller, 262 F.3d at 1072; United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Instead, the Court evaluates the factual circumstances surrounding the plea to predict "whether the outcome of the district court proceedings would have been different if his counsel had not committed the alleged errors." Clingman, 288 F.3d at 1186; see Miller, 262 F.3d at 1072 (court examines factual circumstances surrounding plea to determine whether petitioner would have proceeded to trial). While defendant need not show that he would have prevailed at trial, his prospects of succeeding inform the Court's view whether he in fact would have gone to trial absent the alleged errors. United States v. Triplett, 263 Fed. Appx. 688, 690 (10th Cir. 2008); see Clingman, 288 F.3d at 1186. The strength of the government's case is often the best evidence of whether defendant in fact would have changed his plea and insisted on going to trial. See Hill, 474 U.S. at 59-60.

Defendant does not state that he would have likely prevailed at trial and the record does not reflect any viable defense against the charges. As part of the plea, defendant acknowledged that Jesse Valdez, an undercover sheriff's deputy, purchased 50.5 grams of methamphetamine from defendant on August 13 and 20, 2008.² See Defendant Jose Viera's Proposed Factual Basis For Plea Of Guilty, attached as Exhibit A to the Petition To Enter Plea (Doc. #92). In addition, defendant

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admitted that on September 18, 2008, he told Deputy Valdez that he would check with his friends about selling one additional pound of methamphetamine for $11,000. See id. Finally, defendant's girlfriend, Perla Flores, appeared willing to testify against him.³ In light of this evidence, which is not impacted in any degree by Mr. Duma's alleged lack of advice about deportation, defendant simply states that he would have proceeded to trial if he had known that he would be deported.

Defendant's conclusory claim, though supported by his sworn statement, is insufficient to show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 130 S. Ct. at 1485; see Banos v. United States, No. 10-23314, 2011 WL 835789, at *3 (S.D. Fla. Mar. 4, 2011) (no prejudice from alleged lack of discussion about deportation because defendant never claimed innocence of crimes charged, or offered potentially meritorious defense); Agyepong v. United States, No. 07-cr-178-2, 2011 WL 627361, at *4 (M.D.N.C. Feb. 11, 2011) (given evidence against him and lack of remotely credible innocent explanation, no rational defendant would have proceeded to trial).

Defendant does not expressly state that the fact of deportation was material to his decision to plead guilty and in any event, the record shows otherwise. During a presentence interview, defendant acknowledged that when he is released, "he plans to return to Mexico and live with his family." PSIR (Doc. #109) ¶ 76.⁴ At sentencing, Mr. McCauley represented that defendant is going to be deported after his incarceration and that "he has no intention of coming back." Transcript Of

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Sentencing at 71. At sentencing, defendant also asked the Court to consider the fact that he "will never come back to the United States." Id. at 75. Defendant does not explain how his deportation was material in light of the fact that he planned to return to Mexico and to never return to the United States. See Limones v. United States, No. 07-cr-356-5-TWT, 2011 WL 1157371, at *5 (N.D. Ga. Mar. 29, 2011) (self-serving statement that defendant would have rejected plea agreement had he been informed that he would be deported to Mexico, where he already planned on returning, completely unbelievable; decision to proceed to trial would have been entirely irrational).

Defendant also cannot establish prejudice because he significantly delayed seeking to vacate his plea until after the Court imposed a sentence of 324 months in prison. In the context of a motion to withdraw a guilty plea before sentencing, the Court...