Urista v. United States

• Decision Date: 30 July 2015
• Docket Number: Criminal No. 7:10-CR-009-O,Civil No. 7:13-CV-092-O
• Parties: GUILLERMO LORENZO URISTA v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Northern District of Texas

GUILLERMO LORENZO URISTA v. UNITED STATES OF AMERICA

Civil No. 7:13-CV-092-O

Criminal No. 7:10-CR-009-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

July 30, 2015

ORDER ACCEPTING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE WITH SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is a motion to vacate, correct, or set aside sentence filed pursuant to 28 U.S.C. § 2255. After making an independent review of the pleadings, files and records in this case, of the Findings of Fact, Conclusions of Law, and Recommendation of the United States Magistrate Judge, and of Guillermo Lorenzo Urista's objections to the Magistrate Judge's Recommendation, I am of the opinion that the Report and Recommendation of the Magistrate Judge is correct and it is hereby adopted and incorporated by reference as Findings of the Court. Additionally, the Court finds and orders as follows:

In his objections to the Magistrate Judge's Recommendation, Urista has presented, for the first time, the following grounds for relief:

1. Information gathered by prosecutors during Urista's debriefing by the government was wrongfully used to increase his sentencing guideline level;

2. He should have received leniency in sentencing due to his cooperation with the government;

3. Ineffective assistance because counsel failed to object to an erroneous two-level sentencing enhancement for obstruction of justice; and,

4. Involuntary plea of guilty because he was misled by counsel as to the length of the sentence that would be imposed if he entered a plea of guilty.

As a general rule, grounds for relief raised for the first time in a petitioner's objections to a Magistrate Judge's recommendation are not properly before the Court. United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); see Finley v. Johnson, 243 F.3d 215, 219 n. 3 (5th Cir. 2001) (claims raised for the first time in objections to a magistrate judge's recommendation are generally not considered on appeal). However, in the interest of justice, a district court has the discretionary authority to consider such grounds for relief as an amendment or supplement to the original petition or motion to vacate. See United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996). In his objections the Magistrate Judge's recommendation in the instant case, the Defendant, Guillermo Lorenzo Urista, alleges misconduct on the part of the government and ineffective assistance of counsel resulting in an involuntary plea of guilty. The Court finds that the newly raised grounds for relief warrant review. Therefore, the new claims presented by Urista in his objections are hereby construed as supplemental grounds for relief.

28 U.S.C. § 2255 provides that a prisoner in custody under sentence of a federal court may file a motion to vacate, set aside or correct the sentence in the court which imposed the sentence. The statute states four grounds upon which such relief may be claimed:

1. that the sentence was imposed in violation of the Constitution or laws of the United States;

2. that the court was without jurisdiction to impose such sentence;

3. that the sentence was in excess of the maximum authorized by law, and;

4. that the sentence is otherwise subject to collateral attack.

28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-27 (1962). Section 2255 does not mandate habeas relief to all who suffer trial errors. United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A 1981). It is limited to grounds of constitutional or jurisdictional magnitude, Limon-Gonzalez v. United States, 499 F.2d 936, 937 (5th Cir. 1974), and for the narrow spectrum of other injury which "could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice." Capua, 656 F.2d at 1037.

When, as in the case at bar, a criminal defendant pleads guilty, he has entered more than a mere confession; a guilty plea is an admission that the defendant committed the charged offense. North Carolina v. Alford, 400 U.S. 25, 32 (1970); Taylor v. Whitley, 933 F.2d 325, 327 (5th Cir. 1991). Once a criminal defendant has entered a plea of guilty, all nonjurisdictional defects in the prior proceedings are waived except claims of ineffective assistance of counsel relating to the voluntariness of the guilty plea. E.g., United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); Barrientos v. United States, 668 F.2d 838, 842 (5th Cir. 1982).

A criminal defendant can waive his right to seek post-conviction relief as part of a plea agreement. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The waiver must have been informed and voluntary which requires that the defendant knew that he had a right to seek post-conviction relief and that he was giving up that right. United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Where the record clearly reveals that a defendant understood the terms of his plea agreement and that he raised no question regarding the waiver of post-conviction relief, the defendant is bound by the terms of the agreement. Wilkes, 20 F.3d at 653; Portillo, 18 F.3d at 293.

The waiver set forth in Urista's plea agreement states:

Defendant waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his conviction and sentence. He further waives his right to contest his conviction and sentence in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. Defendant, however, reserves the rights (a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment,or (ii) an arithmetic error at sentencing, (b) to challenge the voluntariness of his plea of guilty or this waiver, and (c) to bring a claim of ineffective assistance of counsel.

See United States v. Urista, 7:13-CV-092-O, Plea Agreement, ECF No. 70 at 6.

The record in this action reflects that Urista understood the terms of his plea agreement and it does not appear that he ever raised a question regarding his waiver of post-conviction relief. Therefore, Urista is bound by the terms of the agreement. The first two new grounds for relief listed above are barred from review by Urista's waiver of the right to pursue collateral relief except under certain circumstances. In addition to being barred by agreement, Urista's claim that prosecutors wrongfully used information voluntarily provided by him during debriefing is conclusory in nature and, as such, does not present a cognizable ground for § 2255 relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (conclusory allegations do not raise a constitutional issue in a federal habeas proceeding). "Although pro se habeas petitions must be construed liberally, 'mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'" Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)). Urista has failed to identify the information that he claims was wrongfully used against him and he has failed to indicate how that information resulted in an increase in his guideline level. Urista's second claim, that he should have received leniency in sentencing due to his cooperation with the government, is nothing more than an out-of-time plea for leniency that does not reflect any constitutional infirmity in the proceedings. Urista is not entitled to relief on his first two supplemental grounds.

Because Urista reserved the rights to bring claims of ineffective assistance of counsel and involuntary plea of guilty, the Court will review the merits of his third and fourth supplemental grounds for relief.

The Sixth Amendment of the United States Constitution guarantees a criminal defendant "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). When a convicted defendant seeks relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687-91 & 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

"It is well settled that effective assistance is not equivalent to errorless counsel or counsel judged ineffective by hindsight. [citations omitted]. Rather, inquiry must be made into the totality of the circumstances surrounding counsel's performance to determine whether reasonably effective representation was provided." Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional competence or that, under the circumstances, the challenged action might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988). The court need not consider the two inquires under Strickland in any particular order since a failure to establish either requirement necessarily defeats the claim. Strickland, 466 U.S. at 697; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990).

In order to demonstrate prejudice under Strickland in the context of non-capital sentencing, a movant must demonstrate that there is a reasonable probability that but for trial counsel's errors the defendant's sentence would have been less harsh. United States v. Grammas, 376 F.3d 433, 439 (5th Cir. 2004).

In his third supplemental ground for relief, Urista claims ineffective assistance of counsel for counsel's failure to object to an erroneous two-level sentencing enhancement for obstruction of justice. Review of the record reflects that ...