JAMES S. MOODY, Jr., District Judge.
This cause comes before the Court upon Petitioner's amended motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255 (CV Dkt. #5) and the Respondent's response (CV Dkt. #10). Upon review of the briefs and the underlying criminal proceedings, the Court determines that the motion should be denied.
Petitioner, Wilmer Rene Pineda Mejia, plead guilty (pursuant to a plea agreement) to conspiring to possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and 846. Petitioner was sentenced to 87 months imprisonment. He did not appeal.
Petitioner timely filed this 28 U.S.C. § 2255 motion raising four claims of ineffective assistance of trial counsel for:
(CV Dkt. #5).
Title 28 U.S.C. § 2255 sets forth the framework for reviewing a federal prisoner's sentence for any of the following four reasons: (1) the sentence was imposed in violation of the Constitution of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Case law establishes that only constitutional claims, jurisdictional claims, and claims of error so fundamental as to have resulted in a complete miscarriage of justice are cognizable on collateral attack. See United States v. Addonizio, 442 U.S. 178, 185 (1979); Hill v. United States, 368 U.S. 424, 428 (1962); Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988).
In order for ineffective assistance of counsel to be grounds for habeas relief Petitioner must satisfy the test establish in Strickland v. Washington. This requires a showing that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is performance, which is objectively unreasonable under prevailing professional norms. Id. at 688. Prejudice results when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding could have been different." Id. at 694. "[T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en Banc) (quoting Burger v. Kemp, 483 U.S. 776 (1987)).
It is well-settled that sentence-appeal waivers are valid if made knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). Guilty pleas waive all but jurisdictional claims up to the time of the plea, see Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); Stano v. Dugger, 921 F.2d 1125, 1150 (11th Cir.), cert. denied, 502 U.S. 835 (1991), and forecloses most claims from collateral attack, see United States v. Bruce" 488 U.S. 563, 569 (1989). This waiver includes constitutional claims. See Wilson v. United States, 962 F.2d 996 (11th Cir. 1992) (pre-plea ineffectiveness waived); Dermota v. United States, 895 F.2d 1324 (11th Cir. 1990) (double jeopardy claims waived). Stating that "a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during sentencing," the Eleventh Circuit opined that to hold otherwise would "permit a defendant to circumvent the terms of the sentence-appeal waiver simply by recasting a challenge to his sentence as a claim of ineffective assistance, thus rendering the waiver meaningless." Williams v. United States, 396 F.3d 1340, 1342 (11
Petitioner has waived grounds one, two, and three by entering into a plea, knowingly and voluntarily. In the Plea Agreement, signed by Petitioner, he states:
(Emphasis In Bold Added),(CR Dkt. #87, p. 12-13).
The court, before accepting Petitioner's plea, made sure he understood what he was doing. After placing him under oath, the court asked:
(CR Dkt. #141, p. 12-13). In regards to Petitioners right to appeal, the court stated: "You have three grounds that you can raise on appeal and only three grounds." Id at 23. The court went on to explain the three grounds then asked Petitioner:
Id. As a result of these conversations, Petitioner had knowledge of the consequences of entering such a plea.
In regards to the voluntary nature of Petitioner's plea, the Plea Agreement states:
(CR Dkt. #87, p. 13). Further, the court addressed the voluntary nature of Petitioner's plea.
(CR Dkt. #141, p. 26). Based on Petitioner's own sworn answers, there is no indication he was forced, threatened or coerced into taking the plea deal. Consequently, the Petitioner waived grounds one, two and three by entering a valid plea.
Although grounds one, two and three were waived through the knowing and voluntary entry of a plea, each would have failed on the merits had it not been waived. In addition, ground four also fails on the merits. By way of explanation to Petitioner, each ground will now be addressed.
Petitioner asserts the following grounds for relief: ineffective assistance of trial counsel for: 1) "defending two separate defendant's in the scope of the same conspiracy;" 2) "failing to set aside time to review discovery, PSI, or follow through on any motions including suppression of evidence;" 3) "creating false and misleading impressions and statements along with failing to argue or object issued in PSI, or Safety Valve departure;" and 4) "purposefully defaulted on filing an appeal after the sentencing hearing even after knowing his client's desire to do so." (CV Dkt. #5). Although Petitioner now claims ineffective assistance of counsel, when accepting Petitioners plea, the court asked Petitioner:
(CR Dkt. #141, p. 26). At the time Petitioner entered his plea he had no complaints about counsel.
Petitioner claims his counsel was ineffective for defending two defendants in the scope of the same conspiracy. Petitioner states:
(CV Dkt. #5, p. 5). Petitioner is factually mistaken. He is not listed as a co-defendant in Adorno's pre-sentence report (PSR or PSI). And Petitioner and Adorno were charged with separate individual conduct.
Adorno was charged with conspiracy beginning on an unknown date and continuing through January 20, 2011, for the following conduct:
(Case # 8:11-cr-51-T-30AEP; PSR p. 3).
Petitioner, Pineda Mejia, was charged with conspiracy from an unknown date until March 1, 2011, and although other individuals were named in Petitioners conspiracy count, none of the individuals were Adorno. (Case # 8:10-cr-497-T-30TBM; PSR, p.5). The conduct for which Petitioner was charged was:
Id. at 3.
Petitioner and Adorno were each accountable only for his own separate conduct. Petitioner sold a much higher quantity of drugs than Adorno, and his resulting guideline calculation was higher. Petitioner admitted that his offense conduct was accurate at sentencing:
Petitioner fails to demonstrate deficient performance on the part of counsel or prejudice resulting therefrom. For these reasons ground one fails for lack of merit.
In ground two, Petitioner claims counsel was ineffective for failing to set aside time to review discovery, the PSI, or follow through on any motions including suppression of evidence. Petitioner states:
(CV Dkt. #5, p.6-7). Petitioner fails to demonstrate how spending more time with Adorno was deficient performance on the part of counsel. Further, Petitioner does not identify the "illegally seized" evidence counsel was allegedly deficient for failing to suppress. Nor does he explain why its seizure was "illegal."
In regards to the PSR, during sentencing, the Judge asked Petitioner:
(CR Dkt. #137, p.4).
Petitioner also fails to demonstrate prejudice. Petitioner makes no claim that, had the "illegally seized" evidence been suppressed, Petitioner would not have pled. Nor does Petitioner demonstrate that had counsel spent more time reviewing "discovery or PSI" Petitioner would have received a lesser sentence. Consequently, Petitioner fails to satisfy Strickland.
Petitioner claims ineffective assistance of counsel for failing to raise objections to the presentence report and for failing to argue for a safety valve or minor role reduction. Petitioner stated:
(CV Dkt. #5, p. 8). Again, Petitioner is mistaken. His counsel did convince the Government to concede a safety valve reduction. Petitioner received credit for it at sentencing:
(CR Dkt. #137, p. 5).
Beyond the safety valve claim, Petitioner does not state what specific facts existed to support any objections his lawyer could have made. Petitioner was only held accountable for the sales he himself made. Without evidence supporting other objections, Petitioner fails to establish deficient performance on the part of counsel.
Petitioner also fails to demonstrate prejudice. Petitioner does not point to anything his counsel could have done that would have resulted in a lesser sentence. And, although Petitioner claims errors within the PSI report, he does not identify any error. He only makes conclusory statements. Conclusory statements are insufficient to merit habeas relief. See U.S. v. Jones, 614 F.2d 80, 82 (5th Cir. 1980); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).
In ground four, Petitioner claims deficient performance on the part of counsel for "purposefully defaulting on filing an appeal after the sentencing hearing even after knowing his client's desire to do so." (CV Dkt. #5, p. 9). Petitioner asserts:
(CV Dkt. #5, p. 9). However, the transcript from Petitioner's sentencing shows Petitioner acknowledged he did not want to appeal:
(CR Dkt. #137, p. 9). Petitioner did not return the form. As explained at sentencing, the court accepts that as an acknowledgment that he did not want to file an appeal. The purpose of the form and explanation on the record is to avoid the very argument Petitioner makes here.
Having accepted the failure to file the "Declaration of Intent to Appeal" form as an acknowledgment that Petitioner did not want to appeal, he will not now be heard to claim to the contrary.
For the reasons set forth above, the Court finds that Petitioner has failed to establish he is entitled to federal habeas relief.
It is therefore ORDERED AND ADJUDGED that:
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further." Miller-Ely. Cockrell, 537 U.S. 322, 355-36 (2003) (quoting Barefoot y. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED.
