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Cribeiro v. United States

United States District Court, W.D. Louisiana, Lake Charles Division

September 12, 2017

LAZARO PEREZ CRIBEIRO B.O.P. #17204-035
v.
UNITED STATES OF AMERICA

          DRELL, CHIEF JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.

         Before the Court are original and amended pro se Motions to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [docs. 406, 414], filed by petitioner Lazaro Perez Cribeiro (“Cribeiro”). For reasons stated below, IT IS RECOMMENDED that the motions be DENIED.

         I.

         Background

         A. Conviction

         On December 11, 2013, Cribeiro and several others were charged in this court in a multi-count indictment with one count of conspiracy to possess with intent to distribute methamphetamine (Count 1), a violation of 21 U.S.C. § 846, and six counts of distribution of methamphetamine (Counts 2-8), a violation of 21 U.S.C. § 841(a)(1). Doc. 1. Cribeiro was a horse trainer who sold methamphetamine in and around Vinton, Louisiana. Doc. 282, att. 2, p. 1. From June to July of 2012, seven controlled purchases of methamphetamine were made from Cribeiro, with a total amount of 147.8 grams of methamphetamine sold in these transactions. Id. On one occasion in 2012, codefendant Brian Keith Hebert (“Hebert”) also obtained approximately two ounces of a mixture containing methamphetamine for resale from Cribeiro.[1] Id. at 1-2.

         On October 14, 2015, Cribeiro, appearing in court with counsel, pleaded guilty to Count 2 of the indictment which charged him with distribution of five or more grams of methamphetamine on or around June 7, 2012. Docs. 1, 280. Shortly thereafter, he filed multiple motions to withdraw his guilty plea, pro se and through newly retained counsel, which the government opposed. See doc. 296. The motions were denied after hearing on December 17, 2015. Doc. 324. On January 12, 2016, Cribeiro was sentenced to a term of 70 months' imprisonment. Doc. 342.

         B. Direct Appeal

         Cribeiro filed a pro se notice of appeal on February 1, 2016. Doc. 356. However, his attorney filed a motion to voluntarily dismiss the appeal on Cribeiro's behalf on February 24, 2016, with a statement signed by Cribeiro attached to that motion. Doc. 436, att. 1, pp. 13-15. The United States Fifth Circuit Court of Appeals granted the motion on February 26, 2016. Doc. 362.

         C. Instant Motion

         Cribeiro filed the instant motion on September 1, 2016, amending it with leave of court on December 19, 2016. Docs. 406, 414. By his original motion he claims that he is entitled to a lesser sentence because, he claims, the court erred in calculating his guideline sentence. Doc. 406, pp. 2- 3. In his amended motion, Cribeiro raised the following claims and requests an evidentiary hearing:

1. Ineffective assistance of trial counsel based on the following deficiencies:
a. Failure to file a motion to suppress based on lack of search warrant/allegedly fraudulent arrest warrant
b. Failure to file a motion to quash on the same basis
c. Failure to subpoena surveillance videos
d. Failure to investigate Cribeiro's claim that he was working out of state during some portion of the alleged conspiracy
e. Failure to interview list of witnesses provided by Cribeiro
f. Coercing Cribeiro to sign plea agreement by telling him that his wife and daughter would be charged with money laundering.
2. The government breached the plea agreement because Cribeiro was sentenced to a greater sentence than what he had expected.
3. The district court erred in calculating the drug quantity used to determine the Guideline range.

Doc. 414; doc. 414, att. 1. Accordingly, the claim raised in the original § 2255 motion is refashioned into Claim 3 of the amended motion.[2]

         II.

         Law and Analysis

         A. Scope of Review

         Following conviction and exhaustion or waiver of the right to appeal, the court presumes that a defendant “stands fairly and finally convicted.” United States v. Shaid, 937 F.2d 228, 231- 32 (5th Cir. 1991) (quoting United States v. Frady, 102 S.Ct. 1584, 1592 (1982)). Relief under § 2255 “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.”[3] United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

         “It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions.” United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). However, the collateral challenge process of § 2255 is no substitute for appeal. E.g., Brown v. United States, 480 F.2d 1036, 1038 (5th Cir. 1973). As a general rule, thus, claims not raised on direct appeal may not be raised on collateral review unless the defendant shows cause and prejudice for his failure, or actual innocence. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). This is neither a statutory nor constitutional requirement, but instead a “doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Massaro v. United States, 123 S.Ct. 1690, 1693 (2003).

         While it is generally the government's responsibility to raise the issue of procedural default, the court may still impose the bar sua sponte. United States v. Willis, 273 F.3d 592, 596- 97 (5th Cir. 2001). However, this should not be done without first considering whether the defendant has been given notice of the issue and had opportunity to argue against application of the bar, and whether the ...


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