Flores v. United States of America, No. 5:2014cv00822 - Document 9 (C.D. Cal. 2014)
Court Description: ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. SECTION 2255 by Judge Virginia A. Phillips, re Motion to Vacate/Set Aside/Correct Sentence (2255) 1 . (See document for specifics) (mrgo)
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Flores v. United States of America Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) ) UNITED STATES OF ) AMERICA, ) ) ) Plaintiff/Respondent, ) ) v. ) ) JOHN JAMES FLORES, ) ) Defendant/Movant. ) ________________________ ) Case Nos. EDCV 14-00822-VAP EDCR 12-00017-VAP ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 [Motion filed on April 24, 2014] 17 I. SUMMARY OF PROCEEDINGS 18 19 On April 24, 2014, John James Flores ("Petitioner") 20 filed a "Motion Under 28 U.S.C. § 2255 to Vacate, Set 21 Aside, or Correct A Sentence by a Person in Federal 22 Custody." ("Motion" or "Mot.")([Crim.] Doc. No. 595; 23 [Civ.] Doc. No. 1,).1 On June 2, 2014, the United States 24 filed an Opposition ("Opp'n") to the Motion. ([Crim.] 25 26 1 Some of the documents filed in connection with this Motion appear only on the docket in the underlying 27 criminal case, CR 12-00017(A)-VAP. Citations to [Civ.] 28 indicate documents on the docket for this Motion. Citations to [Crim.] indicate documents on the docket for the underlying criminal case. Dockets.Justia.com 1 Doc. No. 599.) Petitioner filed a Response to the 2 Government's Opposition on June 18, 2014.2 On July 23, 3 2014, Petitioner filed a "Motion to comply with Local 4 Rule 11-4.1." ("Motion to Comply" ([Crim.] Doc. No. 612; 5 [Civ.] Doc. No. 5).) The Court addresses the additional 6 contentions asserted in the Response and that motion 7 separately, below. 8 9 10 II. BACKGROUND On January 8, 2013, Petitioner pled guilty to Count 1 11 of the Superseding Indictment, conspiracy to possess with 12 intent to distribute and distribute heroin in violation 13 of 21 U.S.C. § 846. (Minutes of Change of Plea Hearing 14 ([Crim.] Doc. No. 298).) Petitioner entered his guilty 15 plea pursuant to a written plea agreement. ("Plea 16 Agreement") ([Crim.] Doc. No. 259). 17 18 The Plea Agreement contains the following provisions: 19 (1) Petitioner agreed to waive his right to a direct 20 appeal of his conviction, with the exception of bringing 21 an appeal that his plea was involuntary (Plea Agreement 22 ¶ 18); (2) Petitioner agreed to waive his right to bring 23 24 2 The Response was initially stricken from the 25 Court's docket for failure to comply with former Local Rule 11-4.1, which required litigants to provide one 26 extra copy of each document filed for the judge's use. (See [Crim.] Doc. Nos. 606-07; [Civ.] Doc. No. 4.) By 27 order of the Court, these entries were restored to the docket on July 31, 2014. (See [Crim.] Doc. No. 618; 28 [Civ.] Doc. No. 6.) 2 1 a direct appeal challenging the calculation of his 2 sentence, provided that he was assigned an offense level 3 of 31 or lower, and the criminal history category 4 calculated by the Court (Plea Agreement ¶ 19); 5 (3) Petitioner agreed to waive his right to bring a post6 conviction collateral attack on his conviction or 7 sentence, with the exception of claims based on 8 ineffective assistance of counsel, newly discovered 9 evidence, or a change to the Sentencing Guidelines, 10 sentencing statutes, or statutes of conviction (Plea 11 Agreement ¶ 20); and (4) Petitioner further agreed that 12 no promises, inducements, or representations of any kind 13 had been made to him other than those contained in the 14 agreement. Moreover, he agreed that no one had 15 threatened him or forced him to sign the agreement and 16 that he was pleading guilty to take advantage of the 17 promises in the agreement. (Plea Agreement, 18 Certification of Defendant.) 19 20 On May 6, 2013, the Court sentenced Petitioner to a 21 144 month term of imprisonment, along with a 5 year 22 period of supervised release. (J. & Commitment Order 23 ([Crim.] Doc. No. 414).) 24 25 On April 24, 2014, Petitioner filed the instant 26 Motion. Construing the Motion liberally, it asserts 27 three claims for relief under § 2255: 28 3 1 2 3 4 (1) the Court erred by convicting him without substantial evidence; (2) due process was violated because the Government 5 used prior felonies listed in criminal history 6 reports to enhance his criminal history, when he 7 was not, in fact, convicted of those prior 8 felonies; 9 10 (3) Defense counsel "induced" him to sign the plea agreement. 11 12 (Mot. at 5.) 13 14 III. LEGAL STANDARD 15 Section 2255 authorizes the Court to "vacate, set 16 aside or correct" a sentence of a federal prisoner that 17 "was imposed in violation of the Constitution or laws of 18 the United States." 28 U.S.C. § 2255(a). Claims for 19 relief under § 2255 must be based on some constitutional 20 error, jurisdictional defect, or an error resulting in a 21 "complete miscarriage of justice" or in a proceeding 22 "inconsistent with the rudimentary demands of fair 23 procedure." United States v. Timmreck, 441 U.S. 780, 24 783–84 (1979). If the record clearly indicates that a 25 movant does not have a claim or that he has asserted "no 26 more than conclusory allegations, unsupported by facts 27 and refuted by the record," a district court may deny a § 28 4 1 2255 motion without an evidentiary hearing. United States 2 v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also 3 United States v. Chacon–Palomares, 208 F.3d 1157, 1159 4 (9th Cir. 2000) ("When a prisoner files a § 2255 motion, 5 the district court must grant an evidentiary hearing 6 '[u]nless the motion and the files and records of the 7 case conclusively show that the prisoner is entitled to 8 no relief.'" (quoting 28 U.S.C. § 2255)). 9 10 IV. DISCUSSION 11 A. Petitioner's Claims Based on Ineffective Assistance 12 of Counsel Fail 13 In the Motion, Petitioner claims his counsel was 14 ineffective for: (1) inducing him to sign the Plea 15 Agreement and (2) failing to object to the calculation of 16 his criminal history category using felonies of which he 17 was not convicted. These claims were not waived in the 18 Plea Agreement (see Plea Agreement ¶ 20), nor could they 19 have been. See United States v. Pruitt, 32 F.3d 431, 20 432-33 ("We doubt that a plea agreement could waive a 21 claim of ineffective assistance of counsel based on 22 counsel's erroneously unprofessional inducement of the 23 defendant to plead guilty or accept a particular plea 24 bargain."); Washington v. Lampert, 422 F.3d 864, 871 (9th 25 Cir. 2005) (finding that waivers cannot bar ineffective 26 assistance of counsel claims associated with the 27 negotiation of plea agreements). 28 5 1 To establish ineffective assistance of counsel, a 2 defendant must prove: (1) "counsel's representation fell 3 below an objective standard of reasonableness," and (2) 4 there is a reasonable probability that, but for counsel's 5 errors, the result of the proceeding would have been 6 different." Strickland v. Washington, 466 U.S. 668,688, 7 694 (1984). The "likelihood of a different result must 8 be substantial, not just conceivable." Harrington v. 9 Richter, 131 S. Ct. 770, 792 (2011). 10 11 1. 12 Petitioner alleges that his trial counsel induced him Counsel's Inducement to Sign the Plea Agreement 13 to sign the Plea Agreement. (Mot. at 5.) The Motion, 14 however, contains no facts or evidence to support this 15 claim or to demonstrate that he was coerced or 16 erroneously induced into signing the Plea Agreement. The 17 record does indicate, however, that the Court 18 specifically asked Petitioner during the plea colloquy if 19 anyone had promised him anything, aside from the benefits 20 of the Plea Agreement, in exchange for his guilty plea. 21 Petitioner answered no, and stated that he was pleading 22 guilty voluntarily. 23 24 Petitioner's bare assertion that he was wrongfully 25 induced by defense counsel to sign the Plea Agreement, 26 absent any supporting evidence, constitutes an 27 insufficient basis to conclude that counsel's conduct was 28 6 1 ineffective. The Court finds Petitioner's statements at 2 the change of plea hearing, made under penalty of 3 perjury, more credible than the conclusory allegations 4 asserted in the Motion. To the extent the Motion argues 5 to the contrary, the Court finds those allegations have 6 little weight. See Blackledge v. Allison, 431 U.S. 63, 7 74 (1977) (“[S]olemn declarations in open court carry a 8 strong presumption of verity.”) Moreover, the Motion 9 lacks any detail about how Petitioner's counsel may have 10 wrongfully induced him to sign the Plea Agreement. A 11 district court may deny a § 2255 motion if the petitioner 12 asserts "no more than conclusory allegations, unsupported 13 by facts and refuted by the record." See United States 14 v. Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 15 2000)(quoting 28 U.S.C. § 2255). 16 17 Additionally, when assessing "the petitioner's claim 18 that ineffective assistance led to the improvident 19 acceptance of a guilty plea, the Court [has] required the 20 petitioner to show 'that there is a reasonable 21 probability that, but for counsel's errors, [the 22 defendant] would not have pleaded guilty and would have 23 insisted on going to trial.'" 24 Ct. 1376, 1384-85 (2012). Lafler v. Cooper, 132 S. Petitioner has made no such 25 showing here. 26 27 28 7 1 Thus, the Court finds that Petitioner's counsel was 2 not ineffective with respect to Petitioner's acceptance 3 of the Plea Agreement and his subsequent guilty plea, and 4 accordingly, DENIES the Motion on this ground and finds 5 that the Plea Agreement remains valid. 6 7 2. Counsel's Failure to Object to the Court's 8 Calculation of His Criminal History Category 9 Petitioner avers that "the government used old prior 10 felonies based on criminal history reports, instead of 11 court judgements (sic) as due process. . . . [I] was 12 never convicted of such charges." (Mot. at 5.) 13 Petitioner further contends that his trial counsel's 14 performance was ineffective for failing to object to the 15 use of prior felonies in the determination of his 16 sentence. (Id. ("[trial counsel] failed to object in 17 open court against the government's usage of [these] old 18 prior felonies . . . .").)3 19 20 21 3 To the extent Petitioner claims that the Court 22 erred in its calculation of his criminal history category in the first instance, the Plea Agreement bars that 23 claim. (See Plea Agreement ¶ 19 ("Defendant agrees that, provided the Court imposes a term of imprisonment within 24 or below the range corresponding to an offense level of 31 and the criminal history category calculated by the 25 Court, defendant gives up the right to appeal all of the following: (a) the procedures and calculations used to 26 determine and impose any portion of the sentence; (b) the term of imprisonment imposed by the Court . . . .").) 27 The Court calculated Petitioner's total offense level to be 31. (See Statement of Reasons ([Crim.] Doc. No. 410) 28 at 1.) 8 1 To the extent Petitioner contends the Court erred by 2 relying on computer databases rather than the physical 3 copies of court or police records in determining his 4 criminal history category, this claim lacks merit. At 5 sentencing, the district court is not limited to only 6 considering information admissible at trial or limited by 7 the Federal Rules of Evidence; rather, the court "may 8 consider information that 'has sufficient indicia of 9 reliability to support its probable accuracy.'" United 10 States v. Langer, 618 F.3d 1044, 1047 (9th Cir. 2010) 11 (quoting USSG § 6A1.3(a)). 12 13 Here, the Court relied upon the Presentence Report 14 ("PSR") in determining Petitioner's criminal history 15 category. ([Crim.] Doc. No. 339.) In the Presentence 16 Report, the Probation Officer assigned to this case 17 stated that she searched through existing records in 18 making her findings concerning Petitioner's criminal 19 history. The PSR States that 20 21 22 23 24 25 A criminal record inquiry was conducted through the Justice Data Interface Controller System (JDIC) which accesses several databases on the county, state and national level. Arrest records and court records were obtained from the following additional sources: San Bernardino Superior Court; Redlands Municipal Court; San Bernardino Sheriff's Department (SBSD); Redlands Police Department (RPD); California Department of Corrections (CDC); and the California Department of Motor Vehicles (DMV). 26 27 28 9 1 (PSR ¶ 41.) 2 history. Those documents reveal a lengthy criminal (See id. ¶¶ 43-98.) Pursuant to Ninth Circuit 3 precedent, the Court was not required to obtain certified 4 copies of judgments or other records in order to rely 5 upon them for purposes of sentencing. Instead, it was 6 permissible to rely on a Probation Officer's 7 representations about a defendant's criminal history 8 where "there is no 'discernable reason' to question the 9 probation officer's honesty, and the sources relied on by 10 the probation officer are equally trustworthy." United 11 States v. Felix, 561 F.3d 1036, 1042 (9th Cir. 2009) 12 (citing United States v. Marin-Cuevas, 147 F.3d 889, 891, 13 894 (9th Cir. 1998) and United States v. Romero-Rendon, 14 220 F.3d 1159, 1163 (9th Cir. 2000)). This is especially 15 true where the defendant "offer[s] no evidence to 16 contradict the PSR but only argue[s] that the government 17 failed to sustain its burden of proof." Id. (citing 18 United States v. Felix, 561 F.3d 1036, 1043 (9th Cir. 19 2009)). Such is the case here. The PSR relied upon 20 official records obtained from government databases and 21 the record indicates no reason to believe the Probation 22 Officer had any reason to prevaricate. 23 F.3d at 895. Marin-Cuevas, 147 Petitioner does not contend that the record 24 of any particular crime in his criminal history is in 25 dispute, only that the Government has failed to meet its 26 burden to show that he was actually convicted of, or was 27 arrested for, those crimes. Accordingly, the Court's 28 10 1 reliance on the PSR, and the records referenced therein, 2 was proper. As "the failure to raise a meritless legal 3 argument does not constitute ineffective assistance of 4 counsel," (see Baumann v. United States, 692 F.2d 565, 5 572 (9th Cir. 1982)), the Court finds that Petitioner's 6 trial counsel did not render ineffective assistance for 7 failing to object to the use of the PSR to determine his 8 criminal history, and accordingly, the Court DENIES the 9 Motion on this ground. 10 11 B. Petitioner's Remaining Claim Regarding the 12 Sufficiency of the Evidence is Barred by His Plea 13 Agreement 14 As noted above, the Plea Agreement agreed to by 15 Petitioner contained explicit waivers of his right to 16 bring a direct appeal and to bring a post-conviction 17 collateral attack on his sentence in most respects. 18 Plea Agreement ¶¶ 18-20.) (See Waivers of direct appeal and 19 post-conviction relief rights are valid, so long as those 20 waivers are express. See United States v. Abarca, 985 21 F.2d 1012, 1014 (9th Cir. 1993). 22 23 Thus, Petitioner's claim that he was convicted 24 without substantial evidence is barred by the terms of 25 the Plea Agreement, and is not covered by any exception 26 27 28 11 1 contained therein. Accordingly, the Court DENIES the 2 Motion on this ground.4 3 4 C. The Additional Allegations in Petitioner's Response 5 and "Motion to Comply" 6 1. 7 In Petitioner's Response, he makes additional Petitioner's Plea Agreement 8 allegations concerning his Plea Agreement. 9 Specifically, he contends that the Plea Agreement 10 reserved his right to file a direct appeal, and that the 11 Court indicated as much at his sentencing. 12 at 3-4.) (Response Additionally, he contends that his trial 13 counsel was required to submit a direct appeal on his 14 behalf, but failed to do so. (Id.) 15 16 Preliminarily, the Court is not required to address 17 issues first raised in a reply brief. See Montes v. 18 United States, 2012 WL 3778856, at *5 (E.D. Cal. Aug. 31, 19 2012) (denying ineffective assistance claim in § 2255 20 motion where first raised in a reply brief). In any 21 event, Petitioner is mistaken that his Plea Agreement 22 reserved the right to file a direct appeal. As noted 23 previously, the Plea Agreement contains express waivers 24 of the right to appeal his conviction, the calculation of 25 4 Not only is this claim barred by the Plea Agreement, it has also been procedurally defaulted due to 27 Petitioner's failure to raise this claim on direct appeal. See Bousley v. United States, 523 U.S. 614, 622 28 (1998). 26 12 1 his sentence, subject to conditions precedent that did 2 not occur, and his right to bring a post-conviction 3 collateral attack on his conviction or sentence. (Plea 4 Agreement ¶¶ 18-20.) 5 6 Moreover, at the close of sentencing, the Court noted 7 that although he had gave up most of his appellate rights 8 through the Plea Agreement, Petitioner still had the 9 right to file an appeal within fourteen days of the date 10 of sentencing, provided he had proper grounds to file 11 such an appeal. Petitioner stated that he understood. 12 Accordingly, to the extent Petitioner's Response raises 13 additional grounds for relief, the Court DENIES those 14 claims as well. 15 16 17 18 2. Petitioner's Allegations Concerning Document Production Petitioner further faults the Government for not 19 complying with the Court's Order requiring a Return to 20 Petitioner's Motion. (See Response at 1-2 (quoting Order 21 Requiring Return ([Civ.] Doc. No. 3)).) Petitioner 22 appears to renew this allegation in the Motion to Comply. 23 (Motion to Comply at 1.) In the Order Requiring Return, 24 the Court stated that "the United States Attorney [shall] 25 file a Return to the motion on or before June 2, 2014, 26 accompanied by all records, and that Respondent [shall] 27 serve a copy of the Return upon the Petitioner prior to 28 13 1 the filing thereof." (Order Requiring Return at 1.) 2 Petitioner appears to be under the impression that this 3 Order required the Government to submit: (1) all 4 documents supporting his criminal history calculation; 5 (2) documents demonstrating that he was read his Miranda 6 rights; (3) documents pertaining to an allegedly unlawful 7 wiretap, and (4) a certification that it employed a 8 certified Spanish language interpreter during the 9 investigation that led to his arrest. (Response at 2-3.) 10 11 Petitioner is mistaken. The Court's Order only 12 requires the United States Attorney to produce all 13 records relevant to the filing of the Return. Here, no 14 additional documents were necessary in the resolution of 15 the Motion. Accordingly, the Court declines to find that 16 the Government failed to comply with the Court's order.5 17 18 19 20 21 22 23 24 25 5 Petitioner also filed a "Motion to respond to Notice of Discrepancy" on August 19, 2014, stating his 27 hope that the previously filed Notices of Discrepancy will not affect the adjudication of the instant Motion. 28 ([Civ.] Doc. No. 8.) 26 14 1 2 V. CONCLUSION For the foregoing reasons, the Court DENIES 3 Petitioner's Motion. 4 5 6 Dated: September 18, 2014 7 8 VIRGINIA A. PHILLIPS United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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