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United States v. Pena-Marquez

United States District Court, D. New Mexico

March 28, 2017

LUIS CARLOS PENA-MARQUEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JAMES G. CARR UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody filed by Movant, Luis Carlos Pena-Marquez, on April 27, 2016. (CV Doc. 1; CR Doc. 19). In his Motion, Pena-Marquez makes three arguments: (1) that his conviction was obtained by a plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the charge and the consequences of the plea; (2) that he received ineffective assistance of counsel; and (3) that he was denied the right of appeal. (CV Doc. 1 at 2-4; CR Doc. 19 at 2-4). The Court determines that Pena Marquez knowingly and voluntarily entered into the plea agreement, that he received effective assistance of counsel, and that he waived his appeal right in the plea agreement. Therefore the Court denies Pena-Marquez's § 2255 Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2015, Luis Carlos Pena-Marquez was charged with Reentry of a Removed Alien in violation of 8 U.S.C. §§ 1326(a) and (b). (CR Doc. 10). Pena Marquez pled guilty under a Fast Track Plea Agreement on November 16, 2015. (CR Doc. 13). The plea agreement provided that Pena-Marquez would receive an offense level reduction for acceptance of responsibility and an additional offense level reduction pursuant to U.S.S.G. § 5K3.1. (CR Doc. 13). Under U.S.S.G. § 2L1.2, Pena-Marquez's base offense level was 8 (Presentence Report (“PSR”) at ¶ 10). Pena-Marquez was assessed a 16-level increase based on his prior felony drug trafficking conviction in Arizona. (PSR at ¶¶ 11, 24). After the 3-level reduction for acceptance of responsibility and a 4-level reduction under U.S.S.G. § 5K3.1, Pena-Marquez's total offense level was 17. (PSR at ¶ 19). His total criminal history score was six, establishing a criminal history category of III. (PSR at ¶ 27). The advisory guideline range was 30 to 37 months of imprisonment. (PSR at ¶ 50).

         In the Fast Track Plea Agreement, Pena-Marquez also agreed to waive “the right to appeal the defendant's conviction(s) and any sentence, including any fine, at or under the maximum statutory penalty authorized by law, ” as well as “any collateral attach to the defendant's conviction(s) and any sentence including any fine, pursuant to 28 U.S.C. §§§ 2241, 2255, or any other extraordinary writ, except on the issue of counsel's ineffective assistance.” (CR Doc. 13 at 6). At the plea hearing, the Court and defense counsel reviewed the terms of the Fast Track Plea Agreement with Pena-Marquez, and he stated that he understood the plea agreement. (Doc. 10-1 at 1-13).

         On February 22, 2016, the Court accepted the Fast Track Plea Agreement and sentenced him to 30 months imprisonment. (CR Doc. 17, 18). Based on his arrest for unauthorized reentry, the Arizona Probation Office filed a petition to revoke his supervised release in the Arizona District Court. The petition was transferred to New Mexico. The Court sentenced Pena-Marquez to twelve months imprisonment, with nine months to be served concurrently with and three months to be served consecutive to his sentence in CR 15-04047 JGC. (See CR 16-01028 WJ, Doc. 5, 17).

         Pena-Marquez then filed his pro se § 2255 Motion on April 27, 2016. (CV Doc. 1; CR Doc. 19). In his Motion, Pena-Marquez raises three ineffective assistance of counsel claims:

(1) he did not understand the consequences of pleading guilty due to ineffective assistance of counsel;
(2) his counsel was ineffective in failing to object to sentencing enhancements; and
(3) he was denied his right to appeal due to ineffective assistance of counsel. (CV Doc. 1 at2-4; CR Doc. 19 at 2-4). The United States filed its Response in opposition to the § 2255 Motion on September 16, 2016. (CV Doc. 10; CR Doc. 27). Attached to the United States' Response are the transcript of Pena-Marquez's November 16, 2015 plea hearing (CV Doc. 10-1; CR Doc. 27-1) and the Affidavit of Barbara A. Mandel, counsel for Pena-Marquez in his criminal case (CV Doc. 10-2; CR Doc. 27-2). Through appointed counsel, Pena-Marquez then submitted a Reply to the United States' Response. (CV Doc. 14-1; CR Doc. 30-1). In the Reply, Pena-Marquez specifically claims that his counsel rendered ineffective assistance by filing to object to the 16-level enhancement under U.S.S.G. § 2L1.2 and in failing to consider new sentencing guidelines that were to take effect November 1, 2016. (CV Doc. 14-1 at 1-3; CR Doc. 30-1 at 1-3).

         II. ANALYSIS OF PENA-MARQUEZ'S CLAIMS

         In essence, Pena-Marquez's § 2255 Motion claims that he received ineffective assistance of counsel in negotiating and entering into the Fast Track Plea Agreement and during the sentencing phase of his criminal case. The Court has reviewed the Motion, answer, and the rule 7(b) expanded record. Under rule 8 of the Rules Governing Section 2255 Proceedings, the Court determines that an evidentiary hearing is not warranted. The Court concludes that the record is sufficient and fails to establish any claim of ineffective assistance of counsel.

         In order to establish a claim of ineffective assistance of counsel, a movant must demonstrate: (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, the challenger must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. To establish prejudice, the movant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. The likelihood of a different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112 (2011).

         Where the petitioner entered a plea of guilty or no contest, the petitioner must establish that he would not have pled guilty had his attorney performed in a constitutionally adequate manner. Miller v. Champion,262 F.3d 1066, 1072 (10th Cir. 2001). If a plea was intelligently and voluntarily entered on advice of counsel and that advice was within constitutional standards, the plea is deemed valid and there is no basis for federal habeas corpus relief. Akridge v. Hopper,545 F.2d 457, 458 (5th Cir. 1977). If there is sufficient evidence that counsel was not ineffective in ...


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