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United States v. Moreno

United States District Court, E.D. Louisiana

September 18, 2019

UNITED STATES OF AMERICA
v.
ERNESTO MORENO

         SECTION "L"

          ORDER & REASONS

          ELDON E. FALLON U.S. DISTRICT COURT JUDGE.

         Before the Court is Defendant Ernesto Moreno’s Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. R. Doc. 464. The United States of America filed an opposition to the motion. R. Doc. 474. This case was originally held before Chief Judge Engelhardt, who conducted the Rearraignment and Sentencing hearings. After Chief Judge Engelhardt’s elevation to the Court of Appeals for the Fifth Circuit, the case was transferred to Judge Fallon. Having considered the parties’ memoranda and applicable law, the Court now rules as follows.

         I. RELEVANT PROCEDURAL BACKGROUND

         On June 26, 2017, on the first day of his trial, Defendant Ernesto Moreno pleaded guilty without a plea agreement to Count 1 of the nine-count second superseding indictment. See R. Doc. 455 at 3–4. Count 1 charged Defendant with knowingly conspiring “to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, Schedule II drug controlled substance.” R. Doc. 455 at 4.

         On December 20, 2017, the Court sentenced Defendant to a term of 372 months imprisonment. R. Doc. 437 at 57. This sentence was based on an offense level of 42 and a criminal history category of three. R. Doc. 437 at 53. The offense level was calculated based on the Presentence Report’s recommendation of a base level of 36, R. Doc. 437 at 10, with a four-level enhancement for a leadership role, R. Doc. 437 at 8, and two-level firearm enhancement, R. Doc. 437 at 52. Because Defendant pleaded guilty on the first day of trial, and thus both the government and the Court had expended resources in preparation for trial, the Court did not apply the two-level acceptance of responsibility reduction. R. Doc. 437 at 11.

         On December 28, 2017, eight days after Defendant’s sentencing, he appealed his sentence to the Fifth Circuit. R. Doc. 434. On February 7, 2019, the Fifth Circuit affirmed this Court’s Judgment. R. Doc. 463.

         II. PRESENT MOTION

         On March 28, 2019, Defendant filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. R. Doc. 464. In his motion, Defendant claims ineffective assistance of counsel with respect to his guilty plea, sentencing, and direct appeal. R. Doc. 646. Specifically, Defendant claims his attorney was ineffective for the following reasons: (1) advising Defendant to plead guilty, R. Doc. 646 at 5; (2) failing to contest the government’s use of time-barred evidence from 2011, R. Doc. 646 at 4; (3) failing to raise the affirmative defense that events that occurred in California and Nashville, Tennessee were improperly included in the Factual Basis in this case in the Eastern District of Louisiana, R. Doc. 646 at 9; and (4) failing to challenge on appeal that there was not a sufficient basis to support Defendant’s guilty plea, R. Doc. 464 at 11. On August 22, 2019, the United States of America filed an opposition to Defendant’s motion. R. Doc. 474.

         III. LAW AND ANALYSIS

         Under 28 U.S.C. § 2255, a prisoner may move the court that imposed his sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). Section 2255 identifies only four bases on which the motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” Id.; see also United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes a “fundamental” error that “renders the entire proceeding irregular or invalid.” United States v. Addonizio, 442 U.S. 178, 186 (1979). The petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. United States v. Bondurant, 689 F.2d 1246, 1251 (5th Cir. 1982). If the Court finds the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         “[A] claim of ineffective assistance of counsel is properly made in a § 2255 motion because it raises an issue of constitutional magnitude and, as a general rule, cannot be resolved on direct appeal.” United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002). To succeed on a claim of ineffective assistance of counsel, a defendant must show: (1) counsel’s performance was constitutionally deficient, and (2) prejudice as a result of the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). Further, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999) (“A failure to establish either deficient performance or resulting prejudice defeats the claim.”). For Sixth Amendment purposes, there is no distinction between retained and appointed counsel. Cuyler v. Sullivan, 446 U.S. 335, 344–45 (1980).

         For the Strickland deficiency prong, counsel’s performance is deficient only if it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Scrutiny of counsel’s performance “must be highly deferential” and a fair assessment “requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Indeed, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of professional assistance, ” and a defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (internal citation omitted). “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).

         For the Strickland prejudice prong, a defendant must show “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. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. For claims of ineffective assistance of counsel relating to sentencing, the defendant “must demonstrate a reasonable probability that, but for his counsel’s actions, he would have received a ‘significantly less harsh’ sentence.” United States v. Grammas, 376 F.3d 433, 439 (5th Cir. 2004) (internal citation omitted).

         a. Whether Defendant’s attorney was ineffective in advising him to plead guilty

         For a guilty plea to be constitutionally valid, it must be knowing and voluntary. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998) (citing Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir.1989)).

[A] defendant may seek habeas relief on the basis of alleged promises, though inconsistent with representations she made in open court when entering her guilty plea, by proving (1) the exact terms of the alleged promise, (2) exactly when, where, and by whom the promise was made, and (3) the precise identity of an eyewitness to the promise . . . If the defendant produces independent indicia of the likely merit of her allegations, typically in the form of one or more affidavits from reliable third parties, she is entitled to an evidentiary hearing on the issue.

Id.

         Defendant argues he had ineffective assistance of counsel because, if he had known he was at risk for imprisonment for 31 years, he says he would not have pleaded guilty and would have instead proceeded to trial. R. Doc. 464 at 5. According to Defendant, he was told “he would likely receive a maximum sentence of 78 months” if he pled guilty and if he had known he would ...


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