June 27, 2013
GONZALO LIRA-ZARAGOZA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S SECTION 2255 MOTION
MARK W. BENNETT, District Judge.
This case is before me on petitioner Gonzalo Lira-Zaragoza's Pro Se Motion For Relief Pursuant to Federal Rule Of Civil Procedure 60(b) and 52(B)(Civ. docket no. 1), filed on January 2, 2013, which I have construed as a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. See Civ. docket no. 2. Lira-Zaragoza claims that his trial counsel provided him with ineffective assistance in various ways. The respondent denies that Lira-Zaragoza is entitled to any relief on his claims.
A. The Criminal Proceedings
On March 21, 2012, Lira-Zaragoza was charged by a one-count Indictment (Crim. docket no. 2) with illegally re-entering the United States after a prior deportation. On March 30, 2012, Lira-Zaragoza appeared in front of then Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to the Indictment. See Crim. docket no. 10.
On April 26, 2012, Lira-Zaragoza appeared before Judge Zoss to change his plea to guilty to the Indictment. See Crim. docket no. 21. On April 26, 2012, Judge Zoss filed his Report And Recommendation Concerning Plea Of Guilty, recommending acceptance of Lira-Zaragoza's guilty plea. See Crim. docket no. 22. I filed an Order Regarding Magistrate's Report And Recommendation Concerning Defendant's Guilty Plea, accepting Lira-Zaragoza's guilty plea, on April 26, 2012. See Crim. docket no. 25.
On July 25, 2012, Lira-Zaragoza, by counsel, filed a Motion For Downward Variance (Crim. docket no. 34), based on the remoteness in time of the prior felony that led to Lira-Zaragoza's deportation from the United States and the instant offense. See Petitioner's Brief at 3.
Lira-Zaragoza appeared before me on August 1, 2012, for a sentencing hearing. See Crim. docket no. 35. I found that Lira-Zaragoza's total offense level was 21 with a criminal history category of IV, for an advisory United States Sentencing Guideline range of 57 to 71 months. See Sent. Trans. at 11. I granted Lira-Zaragoza's Motion for downward variance, and sentenced Lira-Zaragoza to 50 months. See Sent. Trans. at 12.
B. The § 2255 Motion
On January 2, 2013, Lira-Zaragoza filed a Pro Se Motion for relief (Civ. docket no. 1) ("Motion"), which I subsequently construed as a motion under 28 U.S.C. § 2255. See docket no. 2. The Respondent filed an Answer (Civ. docket no. 3), on January 4, 2013. On April 8, 2013, counsel appointed to represent Lira-Zaragoza in this matter filed a Petitioner's Brief (Civ. docket no. 6), addressing the issues raised by Lira-Zaragoza. The Respondent filed its Response To Defendant's Motion (Civ. docket no. 7), on April 16, 2013.
II. LEGAL ANALYSIS
A. Standards For § 2255 Relief
Section 2255 of Title 28 of the United States Code provides as follows:
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.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) ("Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003) ("To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States."). Thus, a motion pursuant to § 2255 "is intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson ).
One "well established principle" of § 2255 law is that "[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a "miscarriage of justice, " although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence, " and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 (citing cases, and also noting that "the Court has emphasized the narrowness of the exception and has expressed its desire that it remain rare' and available only in the extraordinary case.'" (citations omitted)). Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) ( per curiam ). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley, 523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration "that, in light of all the evidence, it is more likely than not that no reasonable juror would Have convicted [the petitioner].'" Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37 (2006). "This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the challenged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
With these standards in mind, I turn to analysis of Lira-Zaragoza's claims for § 2255 relief.
B. Procedural Matters
1. Preliminary matters
Even though ineffective assistance of counsel claims may be raised on a § 2255 motion, because of the advantages of that form of proceeding for hearing such claims, see Massaro v. United States, 538 U.S. 500, 509, that does not mean that an evidentiary hearing is required for every ineffective assistance claim presented in a § 2255 motion. A district court may not " grant a prisoner § 2255 relief without resolving outstanding factual disputes against the government." Grady v. United States, 269 F.3d 913, 919 (8th Cir. 2001) (emphasis in original). Where a motion raises no disputed questions of fact, however, no hearing is required. See United States v. Meyer, 417 F.2d 1020, 1024 (8th Cir. 1969). In this case, I conclude that no evidentiary hearing is required on any issue because the record either conclusively resolves all material factual disputes against the government or raises no disputed questions of fact that are material to my decision.
2. Procedural default
Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice, or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993). "[C]ause and prejudice" to overcome such default may include "ineffective assistance of counsel." See Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005). The Eighth Circuit Court of Appeals has expressly recognized that a claim of ineffective assistance of counsel should be raised in a § 2255 proceeding, rather than on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) ("When claims of ineffective assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings."). To the extent that I can construe Lira-Zaragoza's claims as claims of ineffective assistance of counsel, I will consider them on the merits.
C. Ineffective Assistance Of Counsel
1. Applicable standards
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. CONST. AMEND. VI. Thus, a criminal defendant is constitutionally entitled to the effective assistance of counsel both at trial and on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003); see also Steele v United States, 518 F.3d 986, 988 (8th Cir. 2008). The Eighth Circuit Court of Appeals has recognized that, if a defendant was denied the effective assistance of counsel guaranteed by the Sixth Amendment, "then his sentence was imposed in violation of the Constitution, '... and he is entitled to relief" pursuant to § 2255(a). King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). Both the Supreme Court and the Eighth Circuit Court of Appeals have expressly recognized that a claim of ineffective assistance of counsel should be raised in a § 2255 proceeding, rather than on direct appeal, because such a claim often involves facts outside of the original record. See Massaro, 538 U.S. at 504-05 (2003); United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) ("When claims of ineffective assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.").
The Supreme Court has reiterated that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation... [but] simply to ensure that criminal defendants receive a fair trial.'" Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1403 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). That being the case, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Id. (quoting Strickland, 466 U.S. at 686, with emphasis added). To assess counsel's performance against this benchmark, the Supreme Court developed in Strickland a two-pronged test requiring the petitioner to show "both deficient performance by counsel and prejudice." See Strickland, 466 U.S. at 687-88, 697; see also Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419 (2009). "Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.'" Gianakos v. United States, 560 F.3d 817, 821 (8th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
As to the deficient performance prong, "The Court acknowledged [in Strickland ] that [t]here are countless ways to provide effective assistance in any given case, ' and that [e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" Pinholster, ___ U.S. at ___, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 689). Moreover,
Recognizing the "tempt[ation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence, " [ Strickland, 466 U.S. at 689], the Court established that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, " id., at 690, 104 S.Ct. 2052. To overcome that presumption, a defendant must show that counsel failed to act "reasonabl[y] considering all the circumstances." Id., at 688, 104 S.Ct. 2052. The Court cautioned that "[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges." Id., at 690, 104 S.Ct. 2052.
Pinholster, ___ U.S. at ___, 131 S.Ct. at 1403. To put it another way,
To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." [ Strickland, ] 466 U.S. at 688, 104 S.Ct. 2052.... The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687, 104 S.Ct. 2052.
Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 787 (2011); Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 739 (2011) (quoting Richter ). There are two substantial impediments to making the required showing of deficient performance. First, "[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 690). Second, "[t]here is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689); Davis v. Norris, 423 F.3d 868, 877 (8th Cir. 2005) ("To satisfy this prong [the movant] must overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance."). Also, the court "must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct."'" King, 595 F.3d at 852-53 (quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996), in turn quoting Strickland, 466 U.S. at 690).
The second prong of the Strickland analysis requires the challenger to prove prejudice. Pinholster, ___ U.S. at ___, 131 S.Ct. at 1403 (citing Strickland, 466 U.S. at 691-92). "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Gianakos, 560 F.3d at 821 (quoting Strickland, 466 U.S. at 691). As the Supreme Court has explained,
"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [ Strickland, 466 U.S.] at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. That requires a "substantial, " not just "conceivable, " likelihood of a different result. Richter, 562 U.S., at ___, 131 S.Ct., at 791.
Pinholster, ___ U.S. at ___, 131 S.Ct. at 1403. However, even where the petitioner "suffered prejudice from his lawyer's error, " he is not entitled to § 2255 relief unless the lawyer's error was also the result of conduct that was professionally unreasonable at the time. King, 595 F.3d at 852-53.
The two prongs of the "ineffective assistance" analysis are usually described as sequential. Thus, if the movant fails to show deficient performance by counsel, the court need proceed no further in its analysis of an "ineffective assistance" claim. United States v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003). On the other hand, courts "do not... need to address the performance prong if petitioner does not affirmatively prove prejudice." Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999) (citing Pryor v. Norris, 103 F.3d 710 (8th Cir. 1997)); accord Gianakos, 560 F.3d at 821 ("We need not inquire into the effectiveness of counsel, however, if we determine that no prejudice resulted from counsel's alleged deficiencies.' Hoon v. Iowa, 313 F.3d 1058, 1061 (8th Cir. 2002) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).").
2. Failure to request variance based on absence of fast track program
Lira-Zaragoza alleges that his trial counsel provided ineffective assistance by failing to request a downward variance based on the absence of a "Fast-Track" program in the Northern District of Iowa. Motion at 8; Petitioner's Brief at 7. The respondent asserts that Lira-Zaragoza has not raised any non-frivolous issues in his Motion. Response at 2.
"Fast-Track" programs were initially developed by United States Attorneys to help manage large volumes of immigration related cases in federal district courts. See United States v. Jimenez-Perez, 659 F.3d 704, 706 (8th Cir. 2011). Congress later formalized the program by enacting the PROTECT Act and the Feeney Amendment. Id. Pursuant to this legislation, the United States Sentencing Commission promulgated U.S.S.G. §5K3.1. Jiminez- Perez, 659 F.3d at 707. U.S.S.G. § 5K3.1 provides that "[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General and the United States Attorney for the district." However, in those federal district courts where no Fast Track program exists, "the absence of a [F]ast-[T]rack program and the resulting difference in the guidelines range should not be categorically excluded as a sentencing consideration." Jiminez- Perez, 659 F.3d at 711. A district judge in a district without a Fast-Track program may "consider a facially obvious disparity created by [F]ast-[T]rack programs among the totality of § 3553(a) factors considered." Id. (citing United States v. Reyes-Hermandez, 624 F.3d 405, 421 (8th Cir. 2010)). A defendant seeking consideration of a variance based on a Fast-Track disparity must first demonstrate a sufficient showing of a disparity with similarly situated defendants in a Fast-Track district. See United States v. Longarica, 699 F.3d 1010, 1011 (8th Cir. 2012).
Counsel appointed to represent Lira-Zaragoza in this matter, concedes that Lira-Zaragoza is unable to establish that he would have been eligible for a Fast-Track program, because he has a prior conviction for a violent felony (arson), and three prior deportations. Petitioner's Brief at 10. Lira-Zaragoza's failure to establish that he would have been eligible for a Fast-Track program renders him unable to establish any disparity between himself and similarly situated defendants in a Fast-Track district; therefore, a motion for a downward variance in his case, on this ground, would have been without merit. Failure to raise meritless claims does not constitute ineffective assistance of counsel. Dodge v. Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010) (citing Thomas v. United States, 951 F.2d 902, 905 (8th Cir. 1991) (per curiam). Lira-Zaragoza has not established that his trial counsel's "representation fell below an objective standard of reasonableness." See Strickland, 466 U.S. at 688. For this reason, Lira-Zaragoza's claim that his trial counsel provided ineffective assistance of counsel, fails.
D. Certificate Of Appealability
Denial of Lira-Zaragoza's § 2255 Motion raises the question of whether or not he should be issued a certificate of appealability for his claims therein. The requirement of a certificate of appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in pertinent part, as follows:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from- * * *
(B) the final order in a proceeding under section 2255.
28 U.S.C. § 2253(c)(1)(B); accord FED. R. APP. P. 22(b). To obtain a certificate of appealability on claims for § 2255 relief, a defendant must make "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowerso x, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Cox, 133 F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El that "[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Miller-El, 537 U.S.Ct. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
I find that Lira-Zaragoza has not made a substantial showing of the denial of a constitutional right on his § 2255 claims. See 28 U.S.C. § 2253(c)(2). Specifically, there is no showing that reasonable jurists would find my assessment of Lira-Zaragoza's claims debatable or wrong, Miller-El, 537 U.S. at 338; Cox, 133 F.3d at 569, or that any court would resolve those issues differently. Cox, 133 F.3d at 569. Therefore, Lira-Zaragoza does not make the requisite showing to satisfy § 2253(c) on his claims for relief, and no certificate of appealability will issue in this case. See 28 U.S.C. § 2253(c)(2); FED. R. APP. P. 22(b).
Upon the foregoing, Lira-Zaragoza's Motion Under 28 U.S.C. § 2255 (Civ. docket no. 1), is denied in its entirety. This matter is dismissed in its entirety. No certificate of appealability will issue for any claim or contention in this case.
IT IS SO ORDERED.