Opinion
EP-04-CA-0275-PRM, EP-03-CR-1500-PRM.
October 11, 2005
MEMORANDUM ORDER AND OPINION DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO TITLE 28 U.S.C. § 2255
Before the Court is Petitioner Victor Jose German-Acosta's ("Acosta") pro se "Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255" ("Motion to Vacate"), filed on July 22, 2004. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") on September 13, 2004. Acosta's "Response to Government's Opposition Motion to Vacate the Petitioner['s] Conviction Pursuant to 28 U.S.C. § 2255" ("Reply") followed on October 1, 2004. After careful consideration, the Court concludes that Acosta is not entitled to relief regarding his claims for relief and therefore will dismiss this matter with prejudice. The Court will additionally deny Acosta a Certificate of Appealability.
I. FACTUAL AND PROCEDURAL HISTORY A. Criminal cause no. EP-03-CR-1500-PRM
On August 6, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Acosta, charging him with Illegal Re-entry, in violation of 8 U.S.C. § 1326. In conjunction with the Indictment, the Government filed a Notice of Penalty Enhancement based on Acosta's prior aggravated felony conviction. Acosta decided to forego trial, and instead pleaded guilty to the Indictment on September 25, 2003. The Court accepted the plea on October 20, 2003 and set the matter for sentencing. The Court entered Judgment on January 29, 2004, sentencing Acosta to a 77-month term of imprisonment and a 3-year term of non-reporting supervised release. The Court additionally ordered Acosta to pay a $100 special assessment. Acosta did not appeal.
B. Acosta's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
The Court has liberally read Acosta's Motion to Vacate pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands him to contend that the factual basis for his guilty plea was insufficient to sustain his conviction and that his counsel therefore rendered ineffective assistance by not attacking the Indictment on this basis ("Claim One"). It further understands him to argue that Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998) (" Almendarez-Torres"), was wrongly decided and that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), has cast doubt upon Almendarez-Torres' continuing viability ("Claim Two").
II. MOTIONS TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
"Relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." "When raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." Proof of ineffective assistance of trial or appellate counsel is one of the few claims the Fifth Circuit Court of Appeals recognizes as satisfying the "cause and Prejudice" standard. III. CLAIM ONE A. Legal standard — ineffective assistance of counsel claims
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
Id.
Id.
See id.
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id.
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U .S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent ten dencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding th at a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defend ant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Six th Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. B. Discussion
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
As a threshold matter, Acosta contends that the facts the Government alleged in support of the Indictment were insufficient to show that he actually accomplished an "entry" as it is contemplated under 8 U.S.C. § 1326. Because the factual basis offered by the Government was legally insufficient to support a conviction for Illegal Re-entry, he asserts, counsel rendered ineffective assistance at the plea hearing by failing to move for the dismissal of the Indictment or to object to the Court's acceptance of the guilty plea. The Court has reviewed the parties' argument, and after careful consideration, concludes that Acosta is not entitled to relief regarding his ineffective-assistance claim.
Acosta admits that, on January 15, 2003, agents employed by the Bureau of Customs and Border Protection apprehended him after they observed him running across Paisano Drive in El Paso, Texas. However, Acosta contends that he never actually entered the United States free from official restraint and therefore cannot be guilty of being "found in" or of having entered the country. After review, the Court concludes that Acosta's argument is without merit.
In United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000), the defendant was indicted for knowingly and unlawfully entering and being found in the United States after being deported, in violation of 8 U.S.C. § 1326. He pleaded guilty and the district court entered judgment accordingly. In support of the defendant's guilty plea, the Government alleged that he arrived at Dallas-Fort Worth International Airport on a flight from Guadalajara, Mexico. He presented an alien registration card to a United States Immigration Officer, who ran the card through a computer system which maintains records of aliens who have been deported from the United States. The system showed that Angeles-Mascote had previously been arrested and deported from the United States. The Government further alleged that Angeles-Mascote was a Mexican citizen, had never been a United States citizen, had never received permission from the Attorney General to re-enter the United States, and had never applied for admission to this country.
See Angeles-Mascote, 206 F.3d at 530.
See id.
See id.
See id.
See id.
See id.
Angeles-Mascote argued that the factual basis offered to support his guilty plea was inadequate because the facts he stipulated to did not demonstrate that he was "found in" the United States. Noting the distinction between actual entry and attempted entry, the Fifth Circuit agreed:
See id.
In the present case, as established in the stipulated facts, Angeles-Mascote voluntarily approached the immigration officer at Dallas Fort Worth International Airport. Therefore, it cannot be said that he was discovered in or found in the United States. The appropriate Indictment in the present case would have been to charge Angeles-Mascote with attempting to enter the United States after previously being deported. . . . In the present case, the stipulated facts establish only that Angeles-Mascote approached the port of entry at the airport, and presented immigration officials with an alien registration card. Therefore, the factual basis of the guilty plea does not support the charge that Angeles-Mascote was "found in" the United States.
Id. at 531 (emphasis add ed).
In Acosta's case, therefore, if the Government alleged only that he was found in or entered the United States, the fact of his immediate apprehension upon crossing the international boundary would be legally insufficient to support his conviction. Here, however, the Government did not allege in its factual basis only that Acosta was found in or entered the United States. Rather, the Government alleged that Acosta attempted to enter the United States.
Acosta's Indictment set forth the following charge:
The Grand Jury charges . . . [t]hat on or about July 7, 2003, in the Western District of Texas, Defendant Victor Jose German-Acosta, an alien, who had previously been excluded, deported, and removed from the United States on or about January 15, 2003, and who had not received the consent of the Attorney General of the United States to re-apply for admission, attempted to enter, entered and was found in the United States in the Western District of Texas, in violation of Title 8, United States Code, Section 1326.
The Indictment thus set forth all three alternative theories under which Acosta could be found guilty of Illegal Re-entry, that is, by: (1) attempting to enter the United States; (2) entering the United States; or (3) being found in the United States. The Government was required to provide a factual basis sufficient to support conviction under only one of these three theories.
See United States v. Gonzalez, 988 F.2d 16, 18 (5th Cir. 1993) (the clear language of 8 U.S.C. § 1326 provides for three discrete points in time at which the offense of illegal re-entry may be committed: (1) when a deported alien illegally enters the United States; (2) attempts to illegally enter the United States; or (3) is found at any time in the United States).
At the plea hearing, the Government stood prepared to offer the testimony of the Border agents who apprehended Acosta as he attempted to enter the United States. The Court concludes that the factual basis offered for Acosta's guilty plea was entirely sufficient.
Because the Court concludes that the factual basis offered by the Government in support of Acosta's guilty plea was entirely adequate, it further concludes that Acosta has failed to show that trial counsel performed deficiently by declining to raise a meritless challenge to the Indictment. The Court will accordingly deny Claim One with prejudice.
IV. CLAIM TWO
Putting aside questions of procedural default, the Court finds that Acosta's argument fails on the merits. The Fifth Circuit Court of Appeals has held in numerous unpublished opinions that Apprendi did not overrule Almendarez-Torres, which held that: (1) the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense, and therefore do not need to be alleged in the Indictment; and (2) the sentencing provisions of § 1326(b) do not violate due process. The Court of Appeals has also stated that, unless and until the Supreme Court itself chooses to overrule its holding, the courts of this Circuit are obliged to abide by Almendarez-Torres. The Court will accordingly deny Claim Two with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 56, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied subnom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2 253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2003) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only whether petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the parties' pleadings, the Court concludes that jurists of reason would not debate whether Acosta has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims. VI. CONCLUSION
In sum, the Court concludes that Petitioner Victor Jose German-Acosta's Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. Accordingly, the Court enters the following orders:
1. Petitioner Victor Jose German-Acosta's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on July 22, 2004, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Victor Jose German-Acosta is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Victor Jose German-Acosta's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on July 22, 2004. The Court additionally denied Petitioner a Certificate of Appealability. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Victor Jose German-Acosta's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions in this cause, if any, are DENIED AS MOOT.