United States District Court, W.D. Louisiana, Lake Charles Division
LAZARO PEREZ CRIBEIRO B.O.P. #17204-035
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
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
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. Id. at 1-2.
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.
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.
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
1. Ineffective assistance of trial counsel based on the
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
e. Failure to interview list of witnesses provided by
f. Coercing Cribeiro to sign plea agreement by telling him
that his wife and daughter would be charged with money
2. The government breached the plea agreement because
Cribeiro was sentenced to a greater sentence than what he had
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.
Scope of Review
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.” United States v. Vaughn, 955 F.2d
367, 368 (5th Cir. 1992).
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).
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 ...