Opinion
EP-05-CA-0152-DB, EP-03-CR-1599-DB.
June 2, 2005
MEMORANDUM ORDER AND OPINION DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Ramon Pasillas-Martinez' ("Pasillas") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") [Docket no. 28], filed on April 22, 2005. After review, the Court finds that Pasillas is clearly not entitled to relief regarding his claims. Accordingly, it concludes that his Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Pasillas a Certificate of Appealability. I. BACKGROUND A. Criminal cause no. EP-03-CR-1599-DB
On August 20, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Pasillas, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government timely filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), based on Pasillas' prior aggravated felony conviction for the sale of narcotics. Pasillas, deciding to forego trial, pleaded guilty to the Indictment on September 5, 2003. The Court accepted the plea on September 24, 2003 and set the matter for sentencing. The Court entered Judgment on December 2, 2003, sentencing Pasillas to a 46-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Pasillas to pay a $100 special assessment.
Pasillas timely appealed, arguing that the prior conviction used to increase his sentence is an element of a separate offense under 8 U.S.C. § 1326 and should have been alleged in the Indictment. Because it was not included in the Indictment, he argued, his sentence therefore exceeded the 2-year maximum term of imprisonment that may be imposed for that offense. He acknowledged that the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), foreclosed his argument, but asserted that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), had cast doubt on the continuing viability of Almendarez-Torres. He therefore sought to preserve his claim for review. The Fifth Circuit Court of Appeals rejected his argument and affirmed the judgment on May 21, 2004, stating that Apprendi had not overruled Almendarez-Torres, which held that: (1) the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense; and (2) the sentencing provisions of § 1326(b) do not violate due process. It further stated that, unless and until the Supreme Court itself chose to overrule its holding, the Court of Appeals was obliged to abide by Almendarez-Torres. The Supreme Court denied Pasillas' petition for a writ of certiorari on October 12, 2004.
B. Pasillas' Motion to Vacate pursuant to 28 U.S.C. § 2255
Pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972), the Court has liberally read Pasillas' Motion to Vacate and understands him to raise the following four claims First, Pasillas argues that his sentence violates the holding of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), as extended in United States v. Booker, ___ U.S. ___ 125 S. Ct. 738 (2005) (" Booker") (Claim One). Second, he contends that the Court violated the prohibition against double jeopardy when it enhanced his sentence due to a prior conviction (Claim Two). Third, Pasillas asserts that the Assistant Federal Public Defender who represented him at the plea and sentencing stages of cause no. EP-03-CR-1599-DB labored under a conflict of interest because she was employed by the federal Government, which also employed the Assistant United States Attorney who prosecuted him (Claim Three) According to Pasillas, his counsel therefore did not effectively assist him. Lastly, Pasillas avers that he should have received a more lenient sentence to compensate for his ineligibility: (1) for certain programs sponsored by the Bureau of Prisons ("BOP") which, if successfully completed, could reduce the length of his sentence; and (2) more favorable conditions of confinement (Claim Four).
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 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." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. See Withrow v. Williams, 507 U.S. 680 (1993). It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. III. CLAIM ONE — BOOKER NON-RETROACTIVITY
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
Although the Fifth Circuit Court of Appeals has yet to determine whether Booker applies retroactively to convictions that were already final when the rule was announced, the other circuit courts of appeal to consider the matter have uniformly held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. For the reasons discussed below, this Court agrees with the reasoning set forth by the Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuit Courts of Appeals and accordingly determines that Pasillas is clearly not entitled to relief regarding Claim One.
See Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, at *6, 2005 U.S. App. LEXIS 8699, at *19 (3rd Cir. May 17, 2005) (holding that Booker does not apply retroactively); Guzman v. Un ited States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and therefore does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of new rules announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S . at ___, 125 S.Ct. at 748.
See Booker, ___ U.S. at ___, 125 S.Ct. at 748; see also 18 U.S.C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S. Ct. at 757; see also 18 U.S.C. § 3553(a).
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Sum merlin, ___ U.S. ___, ___,12 4 S.Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, ___ U.S . at ___, 124 S.Ct. at 2522.
Id.
Id.
Id. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow. C. Booker represents a new procedural rule that is not retroactive to cases on collateral review.
Schriro, ___ U.S. at ___, 124 S.Ct. at 2523.
Id.
Id. (internal quotation omitted).
Id. (internal quotation omitted).
Id.
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decision making authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, ___ U.S. at ___, 124 S.Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, ___ U.S. at ___, 124 S.Ct. at 2523.
Id.
Schriro, ___ U.S. at ___, 124 S.Ct. at 2523; see Guzman, ___ F. 3d at ___, 2005 WL 803214, at *1, 2005 U.S. App. LEXIS 5700, at *3; Price, 400 F.3d at 845; Humphress v. United States, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
Schriro, ___ U.S. at ___, 124 S.Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, judgments that became final before January 12, 2005 may not claim relief pursuant to Booker.
See Lloyd, ___ F.3d at ___, 2005 WL 1155220, at *6, 2005 U.S. LEXIS 8699, at *19; Guzman, ___ F.3d at ___, 2005 WL 803 214, at *1, 2005 U.S. App. LEX IS 5700, at *3; Price, 400 F.3d at 845; Hump hress, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, Judgment became final on October 12, 2004, the date on which the Supreme Court denied Pasillas' petition for writ of certiorari, approximately three months before Booker's release. As Booker therefore provides Pasillas with no legal basis for relief, the Court concludes that it should dismiss Claim One with prejudice. IV. CLAIM TWO — DOUBLE JEOPARDY
The Court notes that even if Booker applied retroactively to his § 2255 motion, Pasillas would still not be entitled to relief. The Court enhanced Pasillas' sentence based on his prior aggravated felony conviction. In Booker, the Supreme Court reaffirmed the rule it first set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000): " other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Booker, ___ U.S . at ___, 125 S.Ct. at 746 (emphasis added). Punishing Pasillas more severely due to his recidivism thus does not run a foul of Booker's holding. See Almendarez-Torres v. United States, 523 U.S. 224, 226-7 (1998) (holding that 8 U.S.C. § 1326 (b)(2) does not define a separate offense, but rather represents a penalty provision which simply authorizes a district court to increase a recidivist defendant's punishment).
The Court finds that Pasillas could have raised this claim in his direct appeal but failed to do so. He is therefore not entitled to a merits review unless he can demonstrate cause and prejudice for his default. After due consideration, the Court finds that he has failed to carry his burden in either respect. To the extent Pasillas cites his lack of legal knowledge and indigency as "cause," the Court finds that these reasons are not sufficient within the meaning of the cause and prejudice test. More significantly, Pasillas has failed to show prejudice, as his double jeopardy claim is entirely without merit.
The Double Jeopardy Clause of the United States Constitution prohibits a second prosecution for the same offense after conviction, as well as successive punishments for the same offense. "The focal point of double jeopardy analysis" is "the 'offense' for which the defendant was prosecuted and punished — not the particular conduct criminalized by that offense." To determine whether Pasillas' conviction for Illegal Reentry punishes the same offense as his aggravated felony conviction for the sale of narcotics, the Court must apply the Blockburger "same elements" test. To that end, the Court must inquire whether 8 U.S.C. § 1326 requires proof of an additional fact that the sale of narcotics does not. "Unless each statute requires proof of at least one factual element not also found in the other statute, the statutes 'fail' the Blockburger test and the defendant may not be punished under both statutes absent 'a clear indication of contrary legislative intent.'"
See Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 769 (1994).
United States v. Flores-Peraza, 58 F.3d 164, 165 (5th Cir. 1995).
Blockburger v. United States, 284 U.S. 299 (1932).
Id. at 304.
Flores-Peraza, 58 F.3d at 166 (quoting Whalen v. United States, 445 U.S. 684, 692 (1980)).
Here, the Fifth Circuit has interpreted 8 U.S.C. § 1326 to provide for one criminal offense, reentry of a deported alien, with § 1326(b) merely providing stiffer penalties for those who reenter after being convicted of a felony or aggravated felony. Section 1326 requires proof of four elements to obtain a conviction: (1) alienage; (2) arrest and deportation; (3) reentry into or unlawful presence in the United States; and (4) lack of the Attorney General's consent to reenter. A conviction for the sale of narcotics, on the other hand, at its most basic level requires proof that the accused: (1) sold; (2) a controlled substance. Given that the elements required to convict for a violation of 8 U.S.C. § 1326 are so different from the elements required to convict for a violation of a law prohibiting the sale of narcotics, it is clear that Pasillas was not punished twice for the same offense. The Court therefore finds that Pasillas cannot not show prejudice for his procedural default, even if he were able to show cause. As a consequence, Pasillas is not entitled to a merits review regarding this issue.
United States v. Vasquez-Olvera, 999 F.2d 943, 946 (5th Cir. 1993).
Flores-Peraza, 58 F.3d at 166; United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-32 (5th Cir. 1993).
V. INEFFECTIVE ASSISTANCE OF COUNSEL A. Legal Standard — Ineffective Assistance of Counsel
The Supreme Court established the legal principles that govern ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003), the Supreme Court reiterated that:
An ineffective assistance of counsel claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms."
Wiggins, 539 U.S. at 521 (internal citations omitted).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defend ant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." In the context of guilty pleas, the "prejudice" analysis focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. "In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Hill v. Lockhart, 474 U.S. 52, 58-9 (1985).
Id.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. B. Discussion
Strickland, 466 U.S. at 700; Green, 116 F.3d at 11, 22; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
As set forth above, to prevail on his ineffective assistance claim, Pasillas must show both that counsel performed deficiently and that the deficient performance directly prejudiced his defense. Here, Pasillas has simply accused counsel of operating under a potential (rather than actual) conflict of interest because both she and the prosecutor draw a paycheck from the federal Government. This bare allegation will not suffice. Pasillas cannot escape his burden of demonstrating deficient performance and prejudice by merely stating his conclusion. VI. CLAIM FOUR — LENIENCY BASED ON STATUS AS AN ALIEN
To prevail on an ineffective assistance of counsel claim based on a conflict of interest, a defendant must establish that: (1) counsel labored under an actual conflict; and (2) the conflict of interest adversely affected counsel's performance. Mickens v. Taylor, 535 U.S. 162, 165-66 (2002). "Until the defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Id. at 175.
United States v. Holmes, No. 03-41738, ___ F.3d ___, ___, 2005 WL 768942, *15, 2005 U.S. App. LEXIS 5606, *53-4 (5th Cir. Apr. 6, 2005) (explaining that a petitioner who accuses his counsel of ineffective ness can not escape his burden of demon strating both cause and prejudice by merely stating his conclusion); see Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (stating that mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue).
Holmes, ___ F.3d at ___, 200 5 WL 768942, at *15, 2005 U.S. App. LEXIS 5606, at *54.
Pasillas argues that he should have received a more lenient sentence because, as an alien, he is ineligible for rehabilitation programs and more favorable conditions of confinement, which violates the Equal Protection Clause. In other words, he contends that the Court should have departed downward due to his alien status.
The Court concludes that Pasillas has procedurally defaulted this claim by failing to raise it in his direct appeal and has not shown cause and prejudice sufficient to overcome the procedural hurdle to review. Pasillas states that he did not raise this issue in a direct appeal due to his ignorance of the law and indigence. The Court finds that Pasillas' conclusory allegation does not raise to the level of "cause" under the applicable standard. Moreover, even if Pasillas could show cause, he could not show prejudice. Collateral consequences that an alien may incur following his federal conviction for Illegal Re-entry, such as his ineligibility for more lenient conditions of confinement, are not a basis for a downward departure. VII. CERTIFICATE OF APPEALABILITY
United States v. Garay, 235 F.3d 230, 234 (5th Cir. 2000) (holding that a defendant's status as a deportable alien, as an element of the crime for which he was sentenced, is not the kind of aggravating or mitigating circumstance of the kind or degree not adequately taken into consideration by the Sentencing Guidelines).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cock rell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253 (c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2003) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Pasillas' pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims. VII. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Ramon Pasillas-Martinez' Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Ramon Pasillas-Martinez' Motion to Vacate, Set Aside, or Correct Sentence, filed on April 22, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Ramon Pasillas-Martinez is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order dismissing, with prejudice, Petitioner Ramon Pasillas-Martinez' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on April 22, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claims. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Ramon Pasillas-Martinez' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.
The Clerk shall close this case.