United States District Court, S.D. Alabama, Southern Division
JUAN CARLOS CORTEZ-CONTRERAS BOP Reg. # 16418-003, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
Carlos Cortez-Contreras, a federal prisoner proceeding
pro se, has filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (Doc.
and supporting brief (Doc. 34). The motion has been referred
to the undersigned Magistrate Judge, who is authorized under
S.D. Ala. GenLR 72(a)(1) and (2)(R) to require responses,
issue orders to show cause and any other orders necessary to
develop a complete record, and to prepare a report and
recommendation to the District Judge as to appropriate
disposition of these proceedings brought under 28 U.S.C.
§ 2255, in accordance with 28 U.S.C. § 636(b)(1)
and Rules 8(b) and 10 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
See S.D. Ala. GenLR 72(b); (6/19/2017 electronic
ordered under Rule 4(b) of the Rules Governing Section 2255
Proceedings (see Doc. 35), the Government has timely
filed a response (Doc. 37) in opposition to
Cortez-Contreras's § 2255 motion. Though given the
opportunity, Cortez-Contreras has not submitted a reply to
the response, and the deadline to do so, August 29, 2017, has
passed. (See Doc. 35).
reviewed the parties' submissions in accordance with Rule
8(a) of the Rules Governing Section 2255 Proceedings, the
undersigned finds that an evidentiary hearing is not
warranted and that Cortez-Contreras's § 2255 motion
(Doc. 33) is due be DENIED and
DISMISSED with prejudice.
27, 2016, the grand jury of this district returned a 2-count
indictment against Cortez-Contreras. (Doc. 1 filed
“07/27/2016”). On September 19, 2016,
Cortez-Contreras, represented by appointed counsel and
pursuant to a written plea agreement (Doc. 21), pled guilty
to Count 1 of the indictment, which charged an offense
illegal reentry after deportation or removal in violation of
8 U.S.C. §§ 1326(a) and (b)(2). (See Doc.
final Presentence Investigation Report (“PSR”)
(Doc. 28) prepared by the U.S. Probation Office assigned
Cortez-Contreras a total offense level of 21 and a criminal
history category of III, resulting in a guideline
imprisonment range of 46 to 57 months. On December 7, 2016,
the Court sentenced Cortez-Contreras to 46 months of
imprisonment, to be followed by 3 years of supervised release
and immediate delivery to immigration authorities for
possible deportation, and $100 special assessment.
(See Doc. 31). Cortez-Contreras took no direct
appeal of his conviction or sentence.
28 U.S.C. § 2255 “permits a federal prisoner to
bring a collateral challenge by moving the sentencing court
to vacate, set aside, or correct the sentence.”
Winthrop-Redin v. United States, 767 F.3d 1210,
1215-16 (11th Cir. 2014). Specifically, § 2255 provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence ... If the court finds that the judgment was
rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.
28 U.S.C. § 2255(a)-(b).
the defendant's chance to appeal has been waived or
exhausted, ” a court is “entitled to presume he
stands fairly and finally convicted, especially when, as
here, he already has had a fair opportunity to present his
federal claims to a federal forum.” United States
v. Frady, 456 U.S. 152, 164 (1982). “[A]
collateral challenge, such as a § 2255 motion, may not
be a surrogate for a direct appeal.” Lynn v. United
States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per
curiam) (citing Frady, 456 U.S. at 165 (collecting
cases)). “Because collateral review is not a substitute
for a direct appeal, the general rules have developed that:
(1) a defendant must assert all available claims on direct
appeal, and (2) relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
that narrow compass of other injury that could not have been
raised in direct appeal and would, if condoned, result in a
complete miscarriage of justice.” Id. at 1232
(internal citations, quotations, and footnote omitted).
Once a petitioner files a § 2255 motion, “[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court
shall ... grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto.” [28 U.S.C.] § 2255(b). A
petitioner is entitled to an evidentiary hearing if he
“alleges facts that, if true, would entitle him to
relief.” Aron[ v. United States], 291
F.3d [708, ] 715[ (11th Cir. 2002)] (quoting Holmes v.
United States, 876 F.2d 1545, 1552 (11th Cir. 1989)).
“[A] petitioner need only allege-not
prove-reasonably specific, non-conclusory facts that, if
true, would entitle him to relief.” Id. at 715
n.6. However, a district court need not hold a hearing if the
allegations are “patently frivolous, ”
“based upon unsupported generalizations, ” or
“affirmatively contradicted by the record.”
Holmes, 876 F.2d at 1553 (quoting United States
v. Guerra, 588 F.2d 519, 520- 21 (5th Cir. 1979));
see, e.g., Lynn v. United States, 365 F.3d 1225,
1239 (11th Cir. 2004) (“Because the ... affidavits
submitted by Lynn amount to nothing more than mere conclusory
allegations, the district court was not required to hold an
evidentiary hearing on the issues and correctly denied
Lynn's § 2255 motion.”).
Winthrop-Redin, 767 F.3d at 1216 (footnote omitted).
Accord, e.g., Diveroli v. United States,
803 F.3d 1258, 1263 (11th Cir. 2015). The Court must
“liberally construe pro se filings, including
pro se applications for relief pursuant to §
2255.” Winthrop-Redin, 767 F.3d at 1215.
Grounds for Relief
asserts two grounds for relief under § 2255, both
alleging ineffective assistance of trial counsel at
sentencing. The Sixth Amendment gives criminal defendants the
right to effective assistance of counsel. U.S. Const., amend.
VI; Strickland v. Washington, 466 U.S. 668, 684-86
(1984). “[F]ailure to raise an
ineffective-assistance-of-counsel claim on direct appeal does
not bar the claim from being brought in a later, appropriate
proceeding under § 2255.” Massaro v. United
States, 538 U.S. 500, 509 (2003). Indeed, “in most
cases a motion brought under § 2255 is preferable to
direct appeal for deciding claims of ineffective
assistance.” Id. at 504. See also United
States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013)
(“An ineffective assistance claim should usually be
raised in a motion under 28 U.S.C. § 2255.”
(citing United States v. Patterson, 595 F.3d 1324,
1328 (11th Cir. 2010))), cert. denied, 134 S.Ct. 962
establish an ineffective assistance of counsel claim, a
defendant must show that (1) ‘counsel's
representation fell below an objective standard of
reasonableness' and (2) that such failure prejudiced him
in that ‘there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.' ” United
States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (per
curiam) (quoting Strickland, 466 U.S. at 687-88,
694). “‘Conclusory allegations of ineffective
assistance are insufficient.'” Wilson v. United
States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam)
(quoting United States v. Lawson, 947 F.2d 849, 853
(7th Cir. 1991)). Moreover, “[b]ecause both parts of
the test must be satisfied in order to show a violation of
the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice
prong, or vice versa.” Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000) (citation omitted). See
also Osley v. United States, 751 F.3d 1214, 1222 (11th
Cir. 2014) (“A habeas petitioner claiming ineffective
assistance of counsel must carry his burden on both
Strickland prongs, and a court need not address both
prongs if the defendant has made an insufficient showing on
one.”); Johnson v. Alabama, 256 F.3d 1156,
1176 (11th Cir. 2001) (“The petitioner bears the burden
of proof on the ‘performance' prong as well as the
‘prejudice' prong of a Strickland claim,
and both prongs must be proved to prevail.”).
“The Strickland test is not easily met;
… ‘the cases in which habeas petitioners can
properly prevail on the ground of ineffective assistance of
counsel are few and far between.' ”
Johnson, 256 F.3d at 1176 (quoting Waters v.
Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc)
test for ineffectiveness is not whether counsel could have
done more; perfection is not required.”
Waters, 46 F.3d at 1518. Accord, e.g.,
Burt v. Titlow, 134 S.Ct. 10, 18 (2013)
(“[T]he Sixth Amendment does not guarantee the right to
perfect counsel; it promises only the right to effective
assistance…”). “A lawyer can almost always
do something more in every case. But the Constitution
requires a good deal less than maximum performance.”
Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir.
In evaluating the first, or “performance, ” prong
of Strickland, “[j]udicial scrutiny of
counsel's performance must be highly deferential.”
[Strickland, 466 U.S.] at 689, 104 S.Ct. at 2065.
Because retrospective evaluation of a lawyer's
performance can be difficult, “a court must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that ... the
challenged action might be considered sound trial
strategy.” Id. (internal quotations omitted).
A petitioner must identify specific acts or omissions that
were not the result of reasonable professional judgment, and
a court should deem these acts or omissions deficient only if
they “were outside the wide range of professionally
competent assistance.” Id. at 690, 104 S.Ct.
at 2066. Simply put, the deference afforded an attorney's
decision is great and the bar for proving a Sixth Amendment
violation is high. In light of the “strong presumption
in favor of competence, ” we have held that in order to
prove deficient performance, “a petitioner must
establish that no competent counsel would have taken the
action that his counsel did take.” Chandler v.
United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en
Under the second, or “prejudice, ” prong of
Strickland, a petitioner must “affirmatively
prove prejudice” by showing that counsel's errors
“actually had an adverse effect on the defense.”
466 U.S. at 693, 104 S.Ct. at 2067. This requires a showing
of more than “some conceivable effect on the outcome of
the proceeding.” Id. Instead, the petitioner
“must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104
S.Ct. at 2068. Although this standard is difficult to meet,
it is significant that a petitioner must show only a
reasonable probability that the outcome would have been
different; he “need not show that counsel's
deficient conduct more likely than not altered the outcome in
the case.” Id. at 693, 104 S.Ct. at 2068. When
evaluating this probability, “a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Id. at
695, 104 S.Ct. at 2069.
Brownlee v. Haley, 306 F.3d 1043, 1059-60 (11th Cir.
first claim is that his counsel was ineffective for failing
to object to the PSR's use of the 2015 Guidelines Manual
in calculating his offense level. More specifically, he
claims that counsel should have objected to the PSR's use
of the 2015 Manual's version of United States Sentencing
Guideline § 2L1.2, the pertinent guideline for
calculating the offense level for his conviction under 8
U.S.C. § 1326. (See Doc. 28 at 5, ¶ 17
(“The 2015 Guidelines Manual, incorporating all
guideline amendments, was used to determine the
defendant's offense level. U.S.S.G.
§1B1.11.”)). In its response, the Government
acknowledges that U.S.S.G. § 2L1.2 was
“substantially altered” by revisions effective
November 2016, and it concedes that “the new guideline
should have been used since sentencing occurred in December
2016.” (Doc. 37 at 4). However, the Government argues
that Cortez-Contreras was not prejudiced by this error
because his total offense level would have been the same
under the version of § 2L1.2 effective November 2016.
The Government is correct.
either version of § 2L1.2(a), Cortez-Contreras's
base offense level was 8. The 2015 version of ...