Opinion
EP-04-CA-0279-DB, EP-02-CR-2026-DB.
October 11, 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 Patricia Villegas-Steele's ("Villegas") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 29], filed on July 26, 2004. The Government filed a "Response to Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255" ("Response") [Docket no. 34] on October 20, 2004. Villegas did not file a Reply. After due consideration, the Court finds that Villegas' claims for relief are either procedurally barred or without merit. Accordingly, the Court will deny Villegas' Motion to Vacate in its entirety and dismiss this matter with prejudice. The Court will additionally deny Villegas a Certificate of Appealability.
I. FACTUAL AND PROCEDURAL HISTORY A. Criminal Cause No. EP-02-CR-2026-DB
On December 27, 2002, the Grand Jury sitting in El Paso, Texas, returned a two-count Indictment against Villegas, charging her with importation of fifty kilograms or more of a mixture or substance containing a detectable amount of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3) (Count One); and possession of this same amount of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two). Assistant Federal Public Defender Anne Teresa Berton ("Berton") was appointed to represent her.
Villegas decided to forego trial. On March 11, 2003, after consenting to have her plea taken by a magistrate judge rather than the undersigned district judge, she accordingly appeared before United States Magistrate Judge Michael S. McDonald and entered a plea of guilty to the Indictment. Judge McDonald entered findings of fact on March 12, 2003, recommending that this Court accept Villegas' guilty plea. The Court adopted Judge McDonald's recommendation and accepted Villegas' guilty plea in an order dated March 27, 2003.
The Court deferred sentencing to allow for the preparation of a Presentence Report ("PSR"). The PSR included the following quantity calculations and sentencing recommendations. First, as part of Villegas' relevant offense conduct, the report attributed 877 kilograms of marijuana to her based upon the amount of contraband seized on the day of Villegas' arrest and her statements to investigating agents after being given the appropriate Miranda warnings. Second, the report recommended that the Court sentence Villegas as a career offender due to her 1996 conviction in cause no. EP-95-CR-445-DB for importation of marijuana and her 1989 conviction for burglary of a habitation. Third, the report advised the Court to deny Villegas a minor role reduction because it was legally incompatible with a career-offender enhancement and, in any event, the evidence supported a finding that Villegas had been much more than a mere "mule" or courier.
On November 15, 1995, pursuant to a plea agreement, Villegas pleaded guilty to one count of importing more than 100 kilograms of marijuana into the United States from the Republic of Mexico, in violation of 21 U.S.C. §§ 952 (a) and 9 60(a)(1). The record shows that then-Assistant Federal Public Defender Michael S. McDonald (now United States Magistrate Judge McDonald) represented Villegas. On January 4, 1996, United States District Judge Harry Lee Hudspeth sentenced Villegas to a 78-month term of imprisonment and a 4-year term of supervised release.
Villegas was still on supervised release in cause no. EP-95-CR-445-DB when she committed the offense that is the subject of her present Motion to Vacate. Upon Villegas' indictment in cause no. EP-02-CR-2026-DB, the Government moved to revoke Villegas' supervised release in cause no. EP-95-CR-445-DB. In a proceeding held directly after Villegas' sentencing in cause no. EP-02-CR-2026-DB, the Court revoked Villegas' supervised release and sentenced her to a 33-month term of imprisonment, to run consecutively to the sentence imposed in cause no. EP-02-CR-2026-DB.
Berton filed objections to the PSR prior to sentencing. She additionally moved the Court for a downward departure pursuant to U.S.S.G. § 5K2.0, based on mitigating circumstances not adequately taken into consideration by the Sentencing Commission in formulating the otherwise applicable punishment range. In her motion, Berton argued that her client's 1989 burglary conviction should not be used as a basis for assigning a career offender enhancement, due to the age of the offense. Berton further argued that the offense did not actually involve the use, attempted use, or threatened use of force. Berton additionally asserted that her client's recent work history and familial circumstances warranted a reduction in the applicable punishment range.
Berton noted that Villegas actually committed the offense in 1984 but was not convicted until 1989.
Berton drew the Court's attention to the fact that Villegas' elderly, disabled mother and Villegas' daughter and grandchildren relied upon Villegas for assistance and asked the Court for leniency.
At the sentencing hearing, Berton argued against all three recommendations contained in the PSR and on behalf of her motion for downward departure. The Court, however, overruled Berton's objections and motion for downward departure. It found that Villegas' base offense level was 30 and added two levels based on its determination that Villegas was a career offender. The Court then subtracted three levels for acceptance of responsibility, bringing Villegas' total offense level to 29, Criminal History Category VI. The corresponding punishment range was 151 to 188 months. The Court entered Judgment on May 12, 2003, sentencing Villegas to a 151-month term of imprisonment (the minimum period of confinement under the applicable guideline range) and a 3-year term of non-reporting supervised release as to each count, to run concurrently. The Court additionally ordered Villegas to pay a total special assessment of $200.00.
The Court then proceeded to revoke Villegas' supervised release in cause no. EP-95-CR-445-DB. See supra text accompanying note 1.
Villegas filed a timely Notice of Appeal. However, Philip J. Lynch ("Lynch"), the Assistant Federal Public Defender appointed to represent Villegas on appeal, subsequently filed a motion to withdraw and a brief pursuant to Anders v. California, 368 U.S. 738, 744 (1967). Villegas did not respond. On December 10, 2003, after independently reviewing Lynch's brief and the record, the Fifth Circuit Court of Appeals concluded that no nonfrivolous basis for appeal existed. It accordingly granted Lynch's motion to withdraw and dismissed the appeal.
B. Villegas' Motion to Vacate
The Court has liberally read Villegas' Motion to Vacate pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands her to raise the following claims. First, she alleges that Judge McDonald represented her in cause no. EP-95-CR-445-DB (her prior importation conviction) when he was an Assistant Federal Public Defender and therefore was biased against her. She contends that he therefore erred by taking her guilty plea in the matter that is the subject of her instant Motion to Vacate ("Claim One"). Second, she asserts that she was the victim of vindictive prosecution and other misconduct by the Government concerning the terms of a plea agreement ("Claim Two"). Third, she argues that Berton rendered ineffective assistance at the plea and sentencing stages of cause no. EP-02-CR-2026-DB ("Claim Three").
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.
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).
III. CLAIMS ONE TWO ARE PROCEDURALLY BARRED
After review, the Court concludes that the record on appeal was sufficiently developed to allow Villegas to raise Claims One and Two on direct appeal, and yet she did not do so. Because she gives no reason for her failure, the Court concludes that Villegas has not shown "cause" within the meaning of the cause-and-prejudice standard. Further, she does not assert that she is actually innocent of the charges to which she pleaded guilty. Rather, she contends that she was ill-treated by the prosecution and the Court during the proceedings at issue. Accordingly, the Court concludes that Villegas is not entitled to collateral review of these claims.
The Court additionally notes that Villegas' first and second claims are almost entirely conclusory or alternatively, not supported by the record in this cause, and thus would fail on the merits even if the Court were to review them. To the extent she accuses Judge McDonald of bias and asserts that she repeatedly asked counsel for "a change of venue," the Court observes that Judge McDonald personally advised Villegas of her right to enter her plea before the undersigned district judge. Despite her current self-serving allegations to the contrary, Villegas expressly consented to have her plea taken by Judge McDonald.
The Court has also examined the record of the plea hearing and finds no evidence of bias, nor does Villegas point to any beyond the mere fact that Judge McDonald represented her in the past. In fact, the record shows that Judge McDonald fully admonished Villegas about her rights and otherwise scrupulously acted to ensure that Villegas' plea was knowing and voluntary, and that she was actually guilty of the charges against her. For example, upon observing certain non-verbal signals from Villegas, indicating that she perhaps did not fully agree with the factual basis offered by the Government, Judge McDonald stopped the hearing to let Villegas explain her disagreement, if any. It is moreover unclear how Judge McDonald's purported bias against Villegas could have affected her sentence, since he had nothing whatever to do with the preparation of the PSR or the eventual sentence imposed by this Court.
To the extent Villegas asserts that the Government mistreated her because it did not believe that she was being truthful during her debriefing and did not honor the terms of her plea agreement, her claims are without merit. As the Government notes in its Response, there simply was no plea agreement in this case. Villegas pleaded guilty to the Indictment. It is also entirely within the Government's discretion to determine whether a defendant has fully and truthfully debriefed and whether the information obtained thereby warrants reduction for substantial assistance.
IV. THE MERITS OF CLAIM THREE
Villegas complains that Berton did not advise her of the consequences of her plea; did not move for a "change of venue" so that Villegas did not have to enter her plea before Judge McDonald or be sentenced by him; and did not properly defend or investigate Villegas' case. After reviewing the parties' pleadings and the record in this cause, the Court concludes that Villegas has failed to carry her burden under the applicable test for ineffective assistance of counsel.
A. Legal standard — ineffective assistance of counsel claims
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 Villegas 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, Villegas must show both that Berton performed deficiently and that the deficient performance directly prejudiced her defense. The Court finds that Villegas has failed to carry her burden.
To the extent Villegas asserts that Berton was ineffective because she did not explain the consequences of entering a plea to her, her claims are conclusory and therefore insufficient to sustain her claim for relief. They are moreover contradicted by her representations at the plea hearing that she had discussed the plea with Berton. Villegas' representations at the plea hearing are entitled to great weight. The Court finds that she 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. Villegas has also failed to show prejudice resulting from Berton's purported deficiencies, because the record demonstrates that Judge McDonald fully admonished Villegas as to the consequences of her plea.
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).
Insofar as Villegas avers that Berton should have insisted upon having someone other than Judge McDonald take her client's plea, her claims are without merit for the reasons discussed earlier in this Memorandum Opinion and Order. Inasmuch as Villegas asserts that Berton did not investigate her case, she fails to identify what facts an investigation would have revealed and how these facts would have affected her decision to plead guilty or her ultimate sentence. Villegas cannot escape her burden of demonstrating deficient performance and prejudice by merely stating her conclusion. It is also evident from Berton's motion for downward departure as well as her objections and arguments at the sentencing hearing that Berton in fact extensively investigated Villegas' criminal history and personal circumstances, including Villegas' ongoing addiction to heroin, and urged the Court to treat her client leniently. For the reasons discussed above, the Court will deny Villegas' ineffective-assistance claim against Berton 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. § 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. Cock rell, 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 Villegas 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 Villegas' claims for relief. VI. CONCLUSION ORDER
For the reasons discussed above, the Court concludes that Petitioner Patricia Villegas-Steele 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 Petitioner is not entitled to a Certificate of Appealability. Accordingly, the Court enters the following orders:
1. Petitioner Patricia Villegas-Steele's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket no. 29], filed on July 26, 2004, is DISMISSED WITH PREJUDICE.
2. Petitioner Patricia Villegas-Steele is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.