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Hernandez-Esquivel v. United States

United States District Court, S.D. Alabama, Southern Division

June 28, 2019

ARTURO HERNANDEZ-ESQUIVEL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.

         Arturo Hernandez-Esquivel ("Hernandez" or “Petitioner”), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 46)[1]. The Court has referred the petition to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(1) and (2)(R), is authorized 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); (4/20/2018 electronic referral).

         The United States has timely filed a response (Doc. 50) in opposition to Hernandez's § 2255 motion, to which Hernandez has not responded. The motion is now under submission for determination of whether expansion of the record and/or an evidentiary hearing is warranted. See Rules 7 and 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         Having reviewed the parties' submissions in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the undersigned finds that neither expansion of the record nor an evidentiary hearing is not warranted and RECOMMENDS that Hernandez's § 2255 motion (Doc. 46) be DISMISSED with prejudice.

         I. Background

         In May 2017, Hernandez pled guilty to one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). (Docs. 36, 37). During the guilty plea hearing, Hernandez was placed under oath and questioned regarding the voluntariness of his plea:

The Court: Mr. Esquivel, do you understand the charge against you?
The Defendant: Yes.
The Court: Are you fully satisfied with the representation you've received from your attorney in this case, and have you fully discussed with your attorney all of the facts surrounding the charge?
The Defendant: Yes.
The Court: Have there been any promises made to you by anyone or has anyone attempted in any way to force you to plead guilty or to pressure you or threaten you in any way?
The Defendant: No.
[Defense Counsel]: Your Honor, with regard to the plea agreement and the promises that are being made, the plea agreement indicates that they will recommend dismissal of the case in Atlanta. I did receive confirmation from [the Government] subsequent to receiving the plea agreement that Atlanta has agreed to dismiss the Atlanta charge in return for his plea here today.
The Court: All right. Mr. Hernandez, the penalties that could be imposed if convicted of Count One of the indictment are outlined in your plea agreement.
If convicted of that count, you could receive a term of imprisonment of no less than ten years, up to life . . . Do you understand that?
The Defendant: Yes. I do understand. . .
The Court: Also, if the sentence is more severe than you expected or if I do not accept the sentencing recommendation in your plea agreement, you'll still be bound by your plea. Even if you do not like the sentence imposed by the Court, you will not be able to withdraw your plea. The time to make that decision is now. Do you understand that?
The Defendant: Yes. I understand.
The Court: Under some circumstances, you and the United States each may have the right to appeal any sentence the judge imposes. You also have the right to waive your right to appeal. And I see by your plea agreement that you are waiving your right to appeal any - - you're waiving your right to appeal your conviction and sentence with very limited exceptions. That would be any punishment in excess of the statutory maximum, any punishment constituting an upward departure of the guideline range, and any claim of ineffective assistance of counsel.
Do you understand that?
The Defendant: Yes.

(Doc. 48 at 4-9). A sentencing hearing was held on August 15, 2017, where it was determined that U.S.S.G. § 5K1.1 was applicable to Hernandez for his substantial cooperation, and Hernandez was sentenced to 70 months in the custody of the Bureau of Prisons. (Docs. 43, 49 at 6). Hernandez also executed a Notice of Non-Appeal the same day. (Doc. 42).

         On May 15, 2018, Hernandez timely filed the instant § 2255 petition raising four claims of ineffective assistance of counsel. (Docs. 46). In the United States' response in opposition, the Government argues that the claims are barred by Hernandez's valid plea waiver or are otherwise without merit. (Doc. 50).

         II. Applicable Law

         A. General Standards in § 2255 Proceedings

         Title 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).

         "Once 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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (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).

Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998); Mills[ v. United States], 36 F.3d [1052, ] 1055[ (11th Cir. 1994)]; Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). This rule generally applies to all claims, including constitutional claims. See Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) ("Where the petitioner-whether a state or federal prisoner- failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes cause for the waiver and shows actual prejudice resulting from the alleged violation." (internal quotation marks, punctuation, and citations omitted)); see also Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977) (applying cause and prejudice standard to constitutional claims).
A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Bousley v. United States,523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Mills, 36 F.3d at 1055; Cross v. United States,893 F.2d 1287, 1289 (11th Cir. 1990); Greene, 880 F.2d at 1305; Martorana v. United States,873 F.2d 283, 284 (11th Cir. 1989); Parks v. United States,832 F.2d 1244, 1246 (11th Cir. 1987). Under the second exception, a court may allow a defendant to proceed with a ยง 2255 motion despite his failure to show cause for procedural default if "'a constitutional violation has probably resulted in the conviction of one who is actually ...

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