Opinion
8:99CR39
June 20, 2002
MEMORANDUM AND ORDER
Before the court are (1) Filing No. 144, the motion to vacate sentence and conviction pursuant to 28 U.S.C. § 2255; and (2) Filing No. 146, the praecipe for relief under 28 U.S.C. § 2255, filed by the defendant, Manuel Mario Mendoza. Upon an initial review of the defendant's § 2255 motion, I conclude that the motion should be denied.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states the following regarding initial review:
(b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.
After the defendant entered his plea of guilty to the indictment charging him with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and 841(a)(1), I sentenced him to the custody of the Bureau of Prisons for 168 months, to be followed by five years of supervised release. Filing No. 135. During the sentencing hearing, the defendant objected to the two-level enhancement for his role as a leader or organizer in the offense pursuant to U.S.S.G. § 3B1.1. During an evidentiary hearing on that issue, Andrea DeSantiago and Mario Maravilla testified to the defendant's role in the conspiracy. At the conclusion of the hearing, I held that the enhancement was warranted. The Eighth Circuit Court of Appeals affirmed the defendant's conviction and sentence, holding that the record contained sufficient evidence to warrant his role enhancement. Filing No. 137. See United States v. Mendoza, 242 F.3d 378 (8th Cir. 2000).
In his § 2255 motion, the defendant asserts the following grounds for relief:
Claim #1. Counsel was ineffective prior to the plea of guilty because he failed to properly investigate Andres Naranjo, the driver of the defendant's vehicle in which drugs were found;
Claim #2. Counsel was ineffective prior to sentencing because he failed to properly investigate Andrea DeSantiago's statements regarding his recruitment of her to distribute drugs;
Claim #3. Counsel was ineffective because he failed to negotiate a better agreement with the U.S. Attorney's Office; and
Claim #4. The sentence should be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000).
DISCUSSION
Ineffective Assistance of CounselThe defendant claims ineffective assistance of counsel at both the plea and sentencing hearings. Specifically, the defendant contends that counsel's failure to investigate and negotiate led to a sentencing enhancement for his role in the offense.
The Supreme Court has instructed that there exists a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 689-90 (1984):
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."466 U.S. at 689.
A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.466 U.S. at 690.
A defendant bears the burden of proving both that counsel's performance was deficient and that the defendant suffered prejudice as the result of counsel's ineffective assistance. To establish prejudice, a defendant must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different. See Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000), citing Strickland. Accord Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). "The Strickland test has two parts: whether counsel's performance was in fact deficient and, if so, whether the defendant was prejudiced by the inadequate representation. If we can answer `no' to either question, then we need not address the other part of the test. . . . Under the first part of the Strickland test, we consider counsel's performance objectively and gauge whether it was reasonable `under prevailing professional norms' and `considering all the circumstances.' . . . We look at counsel's challenged conduct at the time of his representation of the defendant and we avoid making judgments based on hindsight." Id. at 453 (citations omitted).
In relation to his guilty plea, the defendant argues that he would not have entered a plea of guilty if counsel had properly informed him of the possible sentence enhancement for his role in the offense. Where the conviction was entered on the basis of a guilty plea, the second part of the Strickland test is slightly modified. In the context of a guilty plea, a convicted defendant must demonstrate 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." Mathews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (citations omitted).
During the change of plea hearing, I informed the defendant that the statutory penalty for conspiracy to distribute methamphetamine is ten years to life imprisonment. The defendant stated that his attorney had advised him that the penalty under the guidelines would be ten to fourteen years of imprisonment. The defendant also stated that he hoped to receive a sentence reduction for his cooperation. At the sentencing hearing, the attorney stated: "I told him he is looking at certainly no less than ten years, but it could be as high as seventeen, but he keeps shooting out the number fourteen." Filing No. 134 at 14. Following this comment, I informed the defendant that "no matter what you think your sentence should be, I'm the one that will ultimately decide what it's going to be." Filing No. 131 at 15. In response to that admonition, the defendant stated: "I know it's all up to you. You have to decide." Filing No. 131 at 17. The defendant also acknowledged that there were no further terms to the plea agreement other than those stated in the signed agreement. Ultimately, I sentenced the defendant to fourteen years of imprisonment. Thus, the plea hearing reflects that the defendant understood his possible punishment at the time of his guilty plea. Therefore, there is insufficient evidence that but for the attorney's alleged errors, the defendant would not have plead guilty to the conspiracy charge.
Regarding the other alleged error, the issue of the validity of the role enhancement was raised on direct appeal. A defendant's § 2255 motion may not be used as a vehicle to circumvent a decision made by an appellate court in a direct appeal. See, e.g., Hooper v. United States, 112 F.3d 83, 87 (2d. Cir. 1997) (a § 2255 petition seeking relief from a judgment of conviction may not be used to relitigate questions that were raised and considered on appeal).
In United States v. Mendoza, 242 F.3d 378 (8th Cir. 2000), the Eighth Circuit held in pertinent part:
Afer carefully reviewing the record and the parties' briefs, we conclude the District Court did not clearly err in applying the role enhancement, because despite Mendoza's denials, there was evidence that he asked a co-conspirator to sell drugs for him; that he fronted drugs to her and sometimes set the price; that he threatened his co-conspirators; and that he gave them instructions regarding the drug transactions on the date of his arrest. See United States v. Bahena, 223 F.3d 797, 806 (8th Cir. 2000) ("[M]atters of credibility . . . are for the trier of fact, and it is not within our province, in the normal case, to re-weigh them on appeal."); United States v. Cooper, 168 F.3d 336, 339 (8th Cir. 1999) (affirming leadership enhancement where evidence showed appellant instructed others "regarding transporting, purchasing, and/or selling controlled substances"); United States v. Ngo, 132 F.3d 1231, 133-34 (8th Cir. 1997) (considering appellant's post-arrest threats as evidence of leadership); United States v. Tran, 122 F.3d 670, 674 (8th Cir. 1997) (finding that the recruitment of co-conspirators showed leadership); United States v. Knight, 96 F.3d 307, 310 (8th Cir. 1996) (considering defendant's price setting as evidence of defendant was organizer or leader), cert denied, 520 U.S. 1180 (1997); United States v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996) (holding that a defendant overstepped mere seller's role by fronting drugs to co-conspirators).
Even under an ineffective assistance analysis, the alleged errors by the defendant's attorney would not warrant § 2255 relief. The transcript of the sentencing hearing reflects his attorney's attempt to prove that a role enhancement was not warranted.
As for investigation of the driver, Andres Naranjo, the attorney did not call Mr. Naranjo to testify. However, regarding Naranjo's testimony, I stated during the sentencing hearing that "there was enough evidence to justify the two point enhancement" without that testimony. Filing No. at 73. The defendant's argument that Nananjo would have testified that the defendant was not the "Mario" who asked Naranjo to drive to Nebraska is without merit. I noted during the hearing that evidence of the defendant's ownership of the truck was sufficient to support the fact that the defendant was the "Mario" who asked Naranjo to transport the drugs. Thus, the defendant was not prejudiced by Mr. Nanjo's absence at the hearing.
Further, the defendant claims that his attorney failed to properly investigate Andrea DeSantiago's statement that she was recruited by the defendant. The transcript of the sentencing hearing clearly shows the attorney's attempt to impeach DeSantiago. During the cross-examination, the defendant's attorney asked Ms. DeSantiago if she had been dealing drugs prior to being asked to do so for the defendant. Ms. DeSantiago stated that she trafficked in drugs through her boyfriend, Powers, who sold drugs for the defendant. Ultimately, I found that Ms. DeSantiago's testimony was credible.
For these reasons, I conclude that the performance of the defendant's attorney was not deficient. Alternatively, the defendant suffered no prejudice from any of the alleged errors. Accordingly, claims one through three of the § 2255 motion are dismissed.
Apprendi
The defendant's arguments based on the principles set forth by the United States Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) may not be asserted in a motion pursuant to 28 U.S.C. § 2255. The Eighth Circuit has ruled repeatedly that Apprendi does not afford relief retroactively to proceedings on collateral review. Dukes v. United States, 255 F.3d 912, 913-14 (8th Cir. 2001):
Although we retroactively apply Apprendi in cases on direct appeal, United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001), this court has recently concluded that Apprendi presents a new rule of constitutional law that is not of "watershed" magnitude and, consequently, petitioners may not raise Apprendi claims on collateral review. United States v. Moss, 252 F.3d 993, 995 [(8th Cir. 2001)] (relying upon Teague v. Lane, 489 U.S. 288 . . . (1989) (plurality)). . . .
While the Supreme Court has not spoken on the issues decided in Moss, we are bound by that decision. United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule another."). . . . [W]e find no way around Moss' prohibition on retroactive application.Accord Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001). Therefore, the defendant's claim based on the Supreme Court's decision in Apprendi is not cognizable on collateral review.
THEREFORE, IT IS ORDERED:
1. That Filing No. 144, defendant Manuel Mario Mendoza's motion to vacate sentence and conviction pursuant to Title 28 U.S.C. § 2255, is denied;
2. That this action is summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts; and
3. That a separate judgement of dismissal with prejudice will be entered in accordance with this Memorandum and Order.