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Lopez-Garcia v. United States

United States District Court, W.D. Michigan, Southern Division

January 26, 2017




         This matter comes before the Court on Movant's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) The Government has filed an affidavit of trial counsel (ECF No. 7) and a response in opposition (ECF No. 8). For the reasons that follow, Movant's § 2255 motion is denied.


         On March 19, 2015, law enforcement arrested Movant. On the same day, law enforcement executed a search warrant of Movant's residence, seizing multiple digital media storage devices, compact discs, cellular telephones, cameras, laptop computers, and $17, 488.00 in cash. (Id. at PageID.82-83.) On March 23, 2015, Movant waived his right to a preliminary hearing. (Id. at ECF No. 9.) The following day, Magistrate Judge Ellen Carmody ordered that Movant be bound over for further proceedings before the grand jury. (Id. at ECF No. 11.)

         On March 31, 2015, the Government filed an eight-count indictment against Movant and two other individuals, alleging that Movant engaged in a conspiracy to produce and traffic in false identification documents and other counterfeit documents, in violation of 18 U.S.C. § 1028; unlawful transfer, possession or production of identification documents, in violation of 18 U.S.C. § 1546; and illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a). (Id. at ECF No. 14.)

         Counsel met with Movant to discuss the Government's proposed plea agreement, and Movant rejected the provisions requiring him to cooperate with the Government and participate in a proffer interview. Movant struck out these paragraphs with a pen, signed the agreement, and told counsel to return the edited agreement to the Government. The Government agreed to the revisions, and on May 12, 2015, the parties signed the revised agreement and filed it with the Court. (Id. at ECF No. 33.) On the same day, the Court conducted a change-of-plea hearing with the parties. (Id. at ECF No. 70, PageID.384.) During the hearing, the Court confirmed that Movant had an adequate opportunity to thoroughly discuss the plea agreement with his attorney and that he was satisfied with his attorney's representation. (Id. at PageID.387.) Movant also confirmed that he signed the plea agreement. (Id. at PageID.386-87.) The Court confirmed that Movant understood that the Court was not bound by any recommendation in the plea agreement. (Id. at PageID.387.) The Government described count 1, conspiracy to produce and traffic in counterfeit immigration documents, and Movant pleaded guilty to it. (Id. at PageID.388.) The Court confirmed that Movant understood the rights he was giving up by pleading guilty. (Id. at PageID.388-92.) The Court also confirmed that no one had threatened or coerced Movant to plead guilty and that no one had made any promises of leniency in exchange for pleading guilty. (Id. at PageID.391.) On August 20, 2015, the Court sentenced Movant on count 1 to 36 months of custody without supervised release and dismissed counts 4, 5, 6, and 8. (Id. at ECF No. 55.)


         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. Thus, it may be raised in a collateral proceeding under § 2255, whether or not Movant could have raised the claim on direct appeal. Id.


         Movant's § 2255 petition is difficult to decipher. Movant repeatedly states that he is not appealing his conviction because his attorney promised to help him, but rather is asking for mercy from the Court to reduce his sentence for good conduct and his work with the prison staff.[1] (ECF No. 1.) For the grounds for his § 2255 motion, Movant circled denial of effective assistance of counsel and conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.[2] (Id. at PageID.4.) It appears that Movant is raising the following claims of ineffective assistance of counsel: failure to file a motion for sentence reduction; failure to file a motion for sentence reduction for the “safety valve”; failure to object to a 36-month sentence when Movant signed a plea agreement for 24 to 30 months; and failure to present the signed plea agreement.

         To succeed on an ineffective assistance of counsel claim, Movant must establish that (1) trial counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). A reasonable probability is one that is “sufficient to undermine confidence in the outcome.” Id. Movant bears the burden of proof for each prong, and the Court may dismiss a claim of ineffective assistance of counsel if he fails to carry his burden of proof on either one. Id. at 687, 697. When evaluating the Strickland prongs, the Court must afford “tremendous deference to trial counsel's decisions.” Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, the purpose of which is “to protect lawyers from having strategic decisions judged with ‘the distorting effect of hindsight.'” Boria v. Keane, 99 F.3d 492, 498 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 689).

         The Strickland framework applies to claims of ineffective assistance of counsel arising from a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985); Humphress, 398 F.3d at 858 (“[D]efendants have a constitutional right to effective assistance of counsel during plea negotiations.”). The performance-prong test remains the same; however, the prejudice prong looks at whether counsel's ineffective performance affected the outcome of the plea process. Hill, 474 U.S. at 59. To succeed, Movant must show ‚Äúthat there is a ...

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