Opinion
Nos. EP-05-CA-0134-PRM, EP-04-CR-1549-PRM.
October 18, 2005
MEMORANDUM ORDER AND OPINION DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Josefina Regis-Ibarra's ("Regis") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 24], filed on April 13, 2005. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") [Docket no. 30] on July 5, 2005. Regis did not file a Reply.
After due consideration, the Court finds that Regis' claims for relief are without merit. Accordingly, the Court will deny her Motion to Vacate and dismiss this matter with prejudice. The Court will additionally deny Regis a Certificate of Appealability. I. FACTUAL AND PROCEDURAL HISTORY A. Criminal Cause No. EP-04-CR-1549-PRM
On July 21, 2004, the Grand Jury sitting in El Paso, Texas, returned a two-count Indictment against Regis, charging her with importation of an unspecified quantity of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 952 (a) and 960(a)(1) (Count One); and possession of a quantity of marijuana with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (Count Two). Regis decided to forego trial and instead accepted a plea agreement offered by the Government. Among other concessions, Regis consented to plead guilty to Count One of the Indictment in return for the Government's promise to dismiss the remaining count then pending against her. After agreeing to enter her plea before a magistrate judge rather than the undersigned district judge, Regis and her court-appointed attorney, Assistant Federal Public Defender Sandra S. Lewis ("Lewis"), accordingly appeared before a United States Magistrate Judge on September 15, 2004 and entered a plea of guilty to Count One of the Indictment.
The Court deferred sentencing to allow for the preparation of a Presentence Report ("PSR"). Upon the issuance of the PSR, Lewis lodged a written objection and argued it before the Court at sentencing on November 18, 2004. Specifically, Lewis argued that her client was only a courier and therefore should receive a two-level downward adjustment in the applicable punishment range for her minor role in the offense. The Court disagreed, citing evidence of fairly substantial planning on Regis' part to distinguish her from a mere courier, and accordingly overruled Lewis' objection. The Court found Regis' base offense level to be 20, subtracted 2 levels for safety valve and an additional 3 levels for acceptance of responsibility, thus bringing Regis' adjusted offense level to 15, Criminal History Category I. The corresponding guideline range was a 18- to 24-month term of imprisonment, a 2- to 3-year term of supervised release, a fine of $4,000 to $40,000, and a special assessment of $100.
In her allocution, Lewis asked the Court to sentence Regis to 18 months, the shortest sentence possible under the applicable guideline range, emphasizing her client's otherwise law-abiding personal history and the deleterious impact that a lengthy imprisonment would have on Regis' minor children. The Court then sentenced Regis to a 18-month term of imprisonment and a 2-year term of non-reporting supervised release. It additionally ordered her to pay a $100 special assessment. Regis did not appeal.
B. Regis' Motion to Vacate
The Court has liberally read Regis' Motion to Vacate pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Regis to argue that Lewis rendered ineffective assistance of counsel because she did not explain the consequences of signing the plea agreement to her and only told her to sign it or the Government would give her more jail time. Regis also contends that Lewis did not review the PSR with her and did not challenge the quantity of marijuana attributed to her. She lastly asserts that Lewis did not look for mitigating factors to reduce her sentence and bring those factors to the Court's attention. Lewis has submitted a sworn affidavit rebutting Regis' allegations.
In an attachment to her Motion to Vacate entitled, "Motion for Sentence Adjustment," Regis asserted that she should have received a downward adjustment to her sentence because, as a non-citizen, she is ineligible for certain rehabilitative programs and more favorable conditions of confinement. In an order entered May 6, 2005, for the reasons detailed therein and herein incorporated by reference, the Court summarily dismissed this claim pursuant to Rule 4 of the Rules Governing Section 2255 Motions.
II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "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." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Further, it is well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. III. THE MERITS OF REGIS' INEFFECTIVE ASSISTANCE CLAIMS A. Legal standard — ineffective assistance of counsel claims
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
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 tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that 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 Sixth 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. With these principles in mind, the Court considers whether Regis has shown that she is entitled to relief.
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).
B. Discussion
As set forth above, to prevail on her ineffective assistance claim against Lewis, Regis must show both that Lewis performed deficiently and that the deficient performance directly prejudiced her defense. The Court finds that Regis has failed to carry her burden.
To the extent Regis asserts that Lewis was ineffective because she did not explain the consequences of signing the plea agreement, her claim is conclusory and therefore insufficient to meet the deficient performance prong of the applicable legal test. Regis moreover fails to rebut Lewis' sworn affidavit stating that she fully explained the terms of plea agreement to her client. Furthermore, even assuming that Regis could demonstrate deficient performance, she cannot show prejudice, as the record of the plea hearing reveals that the Magistrate Judge fully admonished her regarding the rights she would waive as part of pleading guilty and under the terms of her plea agreement. Regis stated that she understood. Nothing she has presented in her present Motion to Vacate persuades the Court that it should afford her instant self-serving allegations greater weight than her sworn statements in open court.
See Blackledge v. Allison, 431 U.S. 63, 73 (1977) (stating that solemn declarations in open court carry a strong presumption of veracity); see also United States v. Cothron, 302 F.3d 279, 283-84 (5th Cir. 2002); United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (crediting district court's determination, made during the plea colloquy, that the defendant had not been pressured, rather than the defendant's later self-serving statements); United States v. Abreo 30 F. 3d 29, 31 (5th Cir. 1994) (placing great weight on defendant's statements during plea colloquy).
Inasmuch as Regis claims that Lewis did not review the PSR with her, Regis' allegation is similarly conclusory and insufficient to sustain her claim for relief. Her contention is also flatly contradicted by the record. The transcript of the sentencing hearing shows that when the Court asked Lewis whether she had reviewed the PSR with her client, Lewis answered in the affirmative. The Court then asked Regis whether she remembered discussing the report with Lewis. Regis stated that she did recall discussing the report with her attorney. The record is moreover consistent with the Court's independent recollection of the events in question. As is its practice, the Court closely observed Regis while she testified. It detected nothing in her demeanor to suggest that her representations to the Court were less than genuine. The Court finds that Regis has failed to show that her present self-serving statements are entitled to greater deference that her sworn representations to the contrary at the sentencing hearing. The Court additionally finds that Regis has failed to demonstrate prejudice, because she has not identified specific errors in the report and how those purported errors affected her sentencing.
See supra note 24.
To the extent Regis faults Lewis for not challenging the quantity of marijuana attributed to her in the PSR, she has articulated no basis for such a challenge. On the other hand, Lewis, in her affidavit, has set forth in detail why she determined it would be fruitless to dispute the amounts alleged by the Government. Regis has failed to come forward with any evidence to suggest that Lewis's strategic decisions were the product of anything other than sound professional judgment.
Insofar as Regis avers that Lewis did not look for mitigating factors to reduce her sentence, her claim is once again conclusory and insufficient to show deficient performance. Her assertion is also contradicted by the record, which shows that Lewis argued for leniency based on Regis' purportedly minor role in the offense, lack of prior criminal record, and her familial circumstances. Lewis could only have obtained this knowledge of her client's personal circumstances through a full review of the documents filed in this case and consultation with her client. Although Regis' failure to demonstrate deficient performance by Lewis renders it unnecessary for the Court to inquire further, it notes that Regis has also failed to demonstrate prejudice. Regis has not identified any other mitigating factors that Lewis could have raised or explained how her failure to bring these unspecified factors to the Court's attention prejudiced her defense. Regis cannot escape her burden of demonstrating deficient performance and prejudice by merely stating her conclusion.
For the reasons discussed above, the Court will deny Regis' ineffective-assistance claim against Lewis and dismiss this matter with prejudice.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" 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 256, 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 sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931, 949 (2003); 28 U.S.C.A. § 22 53(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. § 2253(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, 123 S. Ct. at 1040.
Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the 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' pleading, the Court concludes that jurists of reason would not debate whether Regis has stated a valid claim or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding Regis' claims for relief.
VI. CONCLUSION ORDER
For the reasons discussed above, the Court concludes that Petitioner Josefina Regis-Ibarra is not entitled to relief regarding the claims she raises in her Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court further finds that Regis-Ibarra is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Josefina Regis-Ibarra's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 24], filed on April 13, 2005, is DISMISSED WITH PREJUDICE.
2. Petitioner Josefina Regis-Ibarra is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.