United States District Court, E.D. Louisiana
ORDER & REASONS
E. FALLON U.S. DISTRICT COURT JUDGE.
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.
RELEVANT PROCEDURAL BACKGROUND
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
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.
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.
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.
LAW AND ANALYSIS
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).
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).
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)).
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).
Whether Defendant’s attorney was ineffective in
advising him to plead guilty
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.
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