Herrera v. United States

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Petitioner Christopher Gregory Herrera's Motion to Vacate, Set Aside, or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. (Civil Doc. # 1).^[1]The motion has been fully briefed. (Civil Docs. # 5, 6). For the reasons explained below, the motion is due to be denied.

         I. Background

         In October 2013, the United States Attorney charged Herrera with possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Cr. Doc. # 1). Assistant Federal Public Defender Rick Burgess represented Herrera (Cr. Doc. # 3), who ultimately pleaded guilty to the charge (Cr. Docs. # 16, 17). Following his guilty plea, Herrera was sentenced to 97 months of imprisonment. (Cr. Doc. # 31 at 2). That sentence was within the applicable statutory and guideline sentencing range for Herrera's crime. See 18 U.S.C. § 2252A(b)(1) (statutory range of zero to ten years of imprisonment); (Cr. Doc. # 45 at 4) (guideline range of 97 to 120 months of imprisonment).

         With three exceptions, Herrera waived his right to challenge his conviction and sentence on appeal as well as in any postconviction proceeding, including a motion under § 2255. (Cr. Doc. # 17 at 14-15). Those exceptions reserved Herrera's right to challenge (1) a prison sentence exceeding the statutory maximum sentence for his crime; (2) a prison sentence exceeding the guideline sentencing range determined by the court; and (3) ineffective assistance of counsel. (Id.). Only the third exception is at issue in this case.

         Notwithstanding this waiver, Herrera chose to appeal his conviction and sentence. (Cr. Doc. # 36). The court appointed Kathy Luker to represent Herrera on appeal. (Cr. Docs. # 40, 41). After explaining to Herrera that he had no arguable issues of merit he could raise on appeal (Civil Doc. # 6 at 27-28), Luker moved to withdraw from further representation of Herrera and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). (Cr. Doc. # 47 at 2-3). The Eleventh Circuit granted Luker's motion to withdraw and affirmed Herrera's conviction and sentence. (Id.).

         In April 2013, Herrera filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Civil Doc. # 1). In his motion, Herrera contends that his guilty plea was obtained in violation of Due Process and that he received ineffective assistance of counsel in the trial court and on appeal. (Id. at 4-9).

         II. Legal Standard

         A prisoner who files a § 2255 motion is generally entitled to an evidentiary hearing “if he alleges facts that, if true, would entitled him to relief.” Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (internal quotation marks omitted). But no evidentiary hearing is required if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Moreover, “a district court need not hold a hearing if the allegations are ‘patently frivolous,' ‘based upon unsupported generalizations,' or ‘affirmatively contradicted by the record.'” Winthrop-Redin, 767 F.3d at 1216.

         When collaterally attacking a sentence imposed on the basis of his guilty plea, a prisoner bears an especially heavy burden. Id. Because dispositions by guilty plea must be “accorded a great measure of finality, ” “the representations of the defendant, his lawyer, and the prosecutor at a plea hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Id. (internal quotation marks and brackets omitted). Where the “the record reflects the procedures of plea negotiation and includes a verbatim transcript of the plea colloquy, a petitioner challenging his plea will be entitled to an evidentiary hearing only in the most extraordinary circumstances.” Id. (internal quotation marks omitted). A prisoner may not successfully challenge his guilty plea through “[t]he subsequent presentation of . . . contentions that in the face of the record are wholly incredible.” Id. (internal quotation marks omitted). Indeed, such challenges are “subject to summary dismissal” without an evidentiary hearing. Id.

         III. Analysis

         Herrera makes two constitutional claims in his § 2255 motion. First, he claims his guilty plea was obtained in violation of the Fifth Amendment's Due Process Clause. (Civil Doc. # 1 at 4-5). Second, Herrera claims he received ineffective assistance of counsel in the trial court and on appeal, in violation of his Sixth Amendment right to counsel, see Strickland v. Washington, 466 U.S. 668 (1984). Herrera is not entitled to relief on either claim.

         Herrera's first claim is foreclosed by his plea agreement, in which he knowingly and voluntarily waived the right to collaterally attack his sentence on Due Process grounds. And his Strickland claims, though not waived, are entirely without merit. Herrera's § 2255 motion is therefore due to be denied without an evidentiary hearing.

         A. Herrera Waived His Right to Collaterally Attack His Sentence on Due Process Grounds

         Section 2255 generally allows a federal prisoner to collaterally attack his sentence on grounds that it was imposed in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255(a). However, a prisoner may waive his right to collaterally attack his sentence by plea agreement. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005). Such collateral-attack waivers are valid if the prisoner agrees to the waiver knowingly and voluntarily. Id. Here, Herrera's plea agreement contained a collateral-attack waiver by which he waived the right to challenge his conviction or sentence in a § 2255 motion except on three specified grounds: (1) a sentence in excess of the statutory maximum; (2) a sentence in excess of the guideline range; and (3) ineffective assistance of counsel. (Cr. Doc. # 17 at 14-15). Because the court finds that Herrera agreed to this waiver knowingly and voluntarily, it concludes that Herrera may not now collaterally attack his sentence on Due Process grounds.

         The record in Herrera's criminal case, including the plea colloquy that the undersigned conducted with Herrera, conclusively establishes that his plea (including the collateral-attack waiver) was knowing and voluntary. Herrera's “conclusory and incredible allegations” to the contrary are insufficient to warrant an evidentiary hearing or § 2255 relief. Winthrop-Redin, 767 F.3d at 1216.

         On November 22, 2013, Herrera filed a Guilty Plea Advice of Rights Certification with the court. (Cr. Doc. # 16). By signing the Certification, Herrera indicated that he understood (among other things) the following:

• That he would be placed under oath at his plea hearing;

• That he would be subject to penalties for perjury if he willfully made a false statement at his plea hearing;

• That he would be required at his plea hearing to inform the court if anything was said or done that he didn't understand;

• That he would be asked if his plea was voluntary, or if anyone coerced or threatened him to plead guilty; and

• That he would be asked if he had time to discuss the content of his plea agreement with his attorney and if he personally understood the content of the plea agreement.

(Id. at 1-4). By signing the Certification, Herrera acknowledged that his attorney, Rick Burgess, had “explained to [him] in detail each of the matters set out” in the Certification. (Id. at 4).

         After Herrera signed the Certification, on January 8, 2014, the court held a plea hearing at which Herrera changed his plea to guilty. (Cr. Doc. # 17). At his plea hearing, Herrera confirmed that he could read; that he and Burgess, had read, completed, and signed the Guilty Plea Advice of Rights Certification; and that he understood all the information in the Certification. (Cr. Doc. # 43 at 6-7). He also confirmed he could understand everything the court was saying and that he was able to communicate with his lawyer. (Id. at 7). The court explained that if there was anything Herrera did not fully understand, or if he needed to talk to his lawyer, he should let the court know. (Id. at 6).

         The court then proceeded to ascertain whether Herrera was knowingly and voluntarily entering into his proposed plea agreement with the United States. (Id. at 13-31). The court asked Burgess whether he had a sufficient opportunity to discuss the plea agreement with Herrera before Herrera signed it, and Burgess responded that he had. (Id. at 16). The court then had the following exchange with Herrera:

THE COURT: Mr. Herrera, a few questions for you. At each place where your signature purports to appear in the Plea Agreement, is that actually your signature that you yourself placed upon the document?

THE DEFENDANT: Yes, sir.

. . . .

THE COURT: And at each place where your initials appear in the Plea Agreement, are those your initials that you yourself placed upon the document?

THE DEFENDANT: Yes, sir.

THE COURT: And did you only sign the agreement and initial each page after you were satisfied that you fully understood the contents of the agreement and its operation and effect on you?

THE DEFENDANT: Yes, sir.

THE COURT: Did you have any questions concerning the meaning of the agreement or its operation or effect on you that your lawyer didn't answer to your satisfaction?

THE DEFENDANT: No, sir.

THE COURT: Any such questions that you failed to ask your lawyer ...