Opinion
EP-05-CA-0118-DB, EP-03-CR-1382-DB.
April 21, 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 Fausto Salazar-Armendariz'("Salazar") Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate") [Docket no. 37] pursuant to 28 U.S.C. § 2255, filed on April 5, 2005. After review, the Court finds that Salazar is clearly not entitled to relief regarding his claims. Accordingly, it concludes that Salazar's 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 Salazar a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause no. EP-03-CR-1382-DB
On July 16, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Salazar, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government duly filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), due to Salazar's prior aggravated felony conviction in the District of Nevada for distribution of heroin. Salazar, deciding to forego trial, pleaded guilty to the Indictment on September 29, 2003. The Court accepted the plea on October 15, 2003 and set the matter for sentencing. The Court entered Judgment on January 16, 2004, sentencing Salazar to a 57-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Salazar to pay a $100 special assessment.
Salazar 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 June 23, 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 Salazar's petition for a writ of certiorari on November 1, 2004.
B. Salazar's Motion to Vacate pursuant to 28 U.S.C. § 2255
Salazar raises three claims in his Motion to Vacate. First, he alleges that his plea was involuntary (Claim One). In support of Claim One, Salazar states:
I pled guilty, because I was charged with Illegal Re-entry. When I was sentenced I rec[e]ived 41 months over the maximum sentence for my offense.
Pet.'s Mot. to Vacate, Docket no. 37, at p. 5 ¶ 12 ("Ground One").
Second, Salazar contends that his sentence exceeded the two-year maximum punishment for his offense, as charged in the Indictment (Claim Two). Third, Salazar argues that his sentence violated the Double Jeopardy Clause of the federal Constitution (Claim Three). With respect to Claim Three, he asserts: "I received a enhancement for an already served sentence. I was given an unconstitutional sentence for a prior aggravated felony conviction."
Id. at p. 8 ¶ 12 ("Ground Three").
Salazar explains that he is filing his three claims now because:
I just found out that sentencing guidelines were installed as advisory not mandatory when the Supreme Court decided the Booker case it was on January 12, 2005 United States v. Booker, 543 U.S. ___, 125 S.Ct. ___ 2005 WL 50108 (Jan. 12, 2005). I have also recently about 5 months ago, I learned that the only way I could have rec[e]ived an enhancement was if I went to a jury[.] My prior conviction was not on my indictment, when I was charged with the crime of Illegal Re-entry [ sic].
Id. at p. 13 ¶ 18.
By way of relief, Salazar asks this Court to resentence him to a term of imprisonment not to exceed 24 months. II. LEGAL STANDARD
Id. at p. 14 ¶ 18.
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. THE EFFECT OF SALAZAR'S GUILTY PLEA
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).
The Court has read Salazar's Motion to Vacate liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). In Claim One, the Court understands Salazar to argue that his plea was involuntary because he was convicted in a manner that violated the Supreme Court's recent holding in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (Jan. 12, 2005) (" Booker"). That is, he would not have pleaded guilty to Illegal Reentry if he had known at the time of his plea that the Sentencing Guidelines (and by extension, his sentence enhancement pursuant to § 1326(b)(2)) would later be held unconstitutional. Regarding Claim Two, the Court understands Salazar to re-urge the argument he presented on direct appeal, asserting that the Booker holding invalidates the Court of Appeals' determination that, under Almendarez-Torres, the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense, and do not violate due process. With regard to Claim Three, the Court understands Salazar to argue that the sentence it imposed punished him twice for his previous aggravated felony conviction and thus violated double jeopardy principles.
It is well-established that criminal defendants have only a limited ability to challenge a conviction entered pursuant to a guilty plea:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 770 (1970)].
Tollet v. Henderson, 411 U.S. 258, 267 (1973).
Although a criminal defendant, such as Salazar, who pleads guilty may challenge jurisdictional defects which dispute "the very power of the State to bring the defendant into court to answer the charge against him," he waives his right to challenge all non-jurisdictional defects preceding the plea.
Blackledge v. Perry, 417 U.S. 21, 30 (1974).
See United States v. Owen, 996 F.2d 59, 60 (5th Cir. 1993) (per curiam).
With these principles in mind, the Court concludes that Salazar's guilty plea forecloses review of his assertion that his plea was involuntary ( i.e., Claim One) because the claim does not implicate the effectiveness of his counsel. Rather, Salazar contends that a subsequent determination regarding the constitutionality of the federal Sentencing Guidelines renders his earlier guilty plea involuntary.
Even if Claim One were not barred by his guilty plea, the Court finds that Salazar would still not be entitled to relief on the merits. A guilty plea is constitutionally valid only to the extent it is voluntary and intelligent. A plea does not qualify as voluntary and intelligent unless the defendant first: (1) was informed of the nature of the charges against him and all direct consequences of his plea; and (2) understood the constitutional rights that he was waiving by entering a guilty plea. Voluntariness is determined by examining all the relevant circumstances surrounding it. Reviewing courts give great weight to the defendant's statements at the plea colloquy.
See Bousley v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604, 1609, 140 L. Ed. 2d 828, 837 (1998) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1498-69, 25 L.Ed. 747, 756 (1970)).
See Brady v. United States, 397 U.S. at 754-55, 90 S. Ct. at 1472 (setting forth the constitutional standard for voluntary and intelligent pleas and holding that capital defendant's guilty plea in return for a life sentence, when faced with the strong case against him and the possibility that he would receive the death penalty, was intelligently and voluntarily made); Daniel v. Cockrell, 283 F.3d 697, 702-3 (5th Cir. 2002) (reciting the Brady standard for voluntary and intelligent pleas).
See Brady, 397 U.S. at 749, 90 S. Ct. at 1469.
See Blackledge v. Allison, 431 U.S. 63, 73 (1977) (stating that solemn declarations in open court carry a strong presumption of veracity); see also United States v. Cothron, 302 F.3d 279, 283-84 (5th Cir. 2002); United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (crediting district court's determination, made during the plea colloquy, that the defendant had not been pressured, rather than the defendant's later self-serving statements); United States v. Abreo 30 F. 3d 29, 31 (5th Cir. 1994) (placing great weight on defendant's statements during plea colloquy).
Insofar as Salazar argues that his plea was involuntary, neither his allegations nor the record support his claim. The Plea Hearing was transcribed for purposes of Salazar's direct appeal. That transcript shows that United States Magistrate Judge Richard P. Mesa fully admonished Salazar regarding the charges against him and the maximum punishment he faced. Judge Mesa further informed Salazar that the Government was seeking an enhancement penalty based on his prior aggravated felony. Salazar stood silent, expressing no surprise or alarm at the mention of a penalty enhancement. Accordingly, insofar as Salazar represents that he was unaware that he would face an enhancement due to his prior aggravated felony conviction and would not have pleaded guilty had he been so aware, the Court rejects his assertion. The crux of Salazar's argument is merely that, if he had known that the law was going to change, he would not have pleaded guilty. The Court finds that Salazar's allegations, even if true, do not negate the voluntariness of his guilty plea.
Further, to the extent Salazar relies on Booker as a source of relief, the Court finds that such reliance is misplaced. First, this Court agrees with every circuit court of appeals to have considered the issue that Booker does not apply retroactively to judgments which were final before the date of its release. See Guzman v. United 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 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."). Here, Salazar' conviction became final on November 1, 2004, when the Supreme Court denied his petition for certiorari review. The Supreme Court did not announce its decision in Booker until approximately two months later.
Moreover, even if Booker applied retroactively, Salazar would still not be entitled to relief. In Booker, the Supreme Court extended the rule it first announced in Apprendi to federal sentencing: any fact, other than that of a prior conviction, which increases the penalty for a crime beyond the statutory maximum authorized by the jury's verdict or the defendant's admissions, must be found by a jury beyond a reasonable doubt. Booker, ___ U.S. at ___, 125 S.Ct. at 746-47. Thus, a Court may enhance the sentence of a defendant who is convicted of Illegal Reentry, if the defendant was deported and illegally reentered the United States after being convicted of an aggravated felony, without running afoul of Booker.
Although the Court concludes that Salazar' guilty plea precludes review of Claim One, in contrast, it finds that his guilty plea does not bar review of Claims Two and Three, as these claims allege constitutional violations occurring at sentencing.
IV. PROCEDURAL DEFAULT
Although the Court has determined that Salazar's guilty plea does not preclude review of Claims Two and Three, that conclusion does not end its inquiry. The Court finds that Salazar could have raised Claim Three ( i.e., his double jeopardy challenge) on direct appeal, but failed to do so. Salazar is therefore not entitled to a merits review of that claim unless he sufficiently demonstrates cause and prejudice for the default. For the reasons discussed below, the Court concludes that Salazar has demonstrated neither cause nor prejudice regarding Claim Three and therefore has not overcome the procedural bar to review.
First, Salazar has not satisfied the "cause" standard because he has not shown that some objective factor external to the defense prevented him from raising his double jeopardy claim on direct appeal. Further, assuming for the purposes of discussion that he could demonstrate cause for his default, the Court finds that Salazar cannot show prejudice because his sentence does not violate double jeopardy principles.
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 Salazar's conviction for Illegal Reentry punishes the same offense as his aggravated felony conviction for conspiracy to possess with intent to distribute marijuana, 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 21 U.S.C. § 841(a)(1) 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 pursuant to 21 U.S.C. § 841(a)(1), on the other hand, requires proof that the accused: (1) knowingly or intentionally; (2) manufactured, distributed, dispensed, or possessed with the intent to manufacture, distribute, or dispense; (4) 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 21 U.S.C. § 841(a)(1), it is clear that Salazar was not punished twice for the same offense. The Court therefore finds that Salazar cannot not show prejudice for his procedural default, even if he were able to show cause. As a consequence, Salazar 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).
See 21 U.S.C. §§ 846 841(a)(1).
V. PRIOR ADJUDICATION OF CLAIM TWO
As discussed previously, on direct appeal, the Fifth Circuit Court of Appeals rejected the argument now represented by Claim Two of Salazar's Motion to Vacate. This Court finds that no countervailing equitable considerations compel a readjudication of this matter. The Supreme Court's holding in Booker did not overrule Almendarez-Torres, any more than its previous decision in Apprendi did. Salazar is thus clearly not entitled to relief in this regard.
VI. CERTIFICATE OF APPEALABILITY
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, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931, 949 (2003); 28 U.S.C.A. § 22 53(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 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, 123 S. Ct. at 1040.
Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (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 Salazar's 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 Fausto Salazar-Armendariz' 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 Fausto Salazar-Armendariz' Motion to Vacate, Set Aside, or Correct Sentence, filed on April 5, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Fausto Salazar-Armendariz 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 Fausto Salazar-Armendariz' Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on April 5, 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 Fausto Salazar-Armendariz' 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.