United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
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). 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
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.
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
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
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).
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).
General Standards in § 2255 Proceedings
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, 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
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
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 § 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 ...