Rebollar v. United States Of America DO NOT DOCKET IN 4:07CV2929. DOCUMENTS SHOULD BE FILED IN 4:04:CR523) ., No. 4:2007cv02929 - Document 2 (S.D. Tex. 2008)
Court Description: MEMORANDUM AND OPINION entered DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:04-CR-523 (Defendant No. 2). Final judgment to be entered by separate order. A COA will not be issued.(Signed by Judge Lee H Rosenthal). Parties notified.(leddins, )
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plies to cases involving guilty pleas. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his counsel’s actions fell below an objective standard of reasonableness and petitioner suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668 (1984); Martin v. 5 Cain, 246 F.3d 471, 477 (5th Cir. 2001). The district court may dispose of a claim if counsel either rendered reasonably effective assistance or no prejudice can be shown. A court evaluating a claim of ineffective assistance need not address the reasonableness component first. If a petitioner fails to make one of the required showings, the court need not address the other. Strickland, 466 U.S. at 697. In assessing the reasonableness of counsel’s performance, the court must indulge a strong presumption that the performance falls within the “wide range of reasonable professional assistance” and that “the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689; Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993). If counsel’s action is based on well-informed strategic decisions, it is “well within the range of practical choices not to be second-guessed.” Rector v. Johnson, 120 F.3d 551, 564 (1997) (quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992), cert. denied, 509 U.S. 921 (1993)). As to the prejudice portion of the inquiry, a convicted defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. An attorney’s strategic choices based on information supplied by the defendant and gathered from an investigation of the relevant law and facts “are virtually unchallengeable.” Strickland, 466 U.S. at 691. To establish prejudice, a petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the 6 outcome.” Id. at 694. The prejudice component of the Strickland test “focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. Because Rebollar pleaded guilty, the relevant inquiry is whether counsel’s performance interfered with his ability to understand the nature of the charges against him and the consequences of his plea. Once a guilty plea has been entered, nonjurisdictional defects in the proceedings against the defendant are waived, including all claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.), cert. denied sub nom. Smith v. McKaskle, 466 U.S. 906 (1984). In the context of a guilty plea, a petitioner shows prejudice by showing that but for his counsel’s allegedly incorrect advice, he would have insisted on going to trial. Mangun v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995). This record demonstrates that Rebollar cannot satisfy either the deficiency or the prejudice requirements of Strickland. III. Analysis In his section 2255 motion, Rebollar alleges that counsel provided ineffective assistance by stating that he would receive a ten-year sentence and by failing to inform him of the possible consequences of his plea of guilty. The rearraignment hearing transcript 7 clearly refutes Rebollar’s allegations that he was advised that he would receive a ten-year sentence. Rebollar’s colloquy with the court expressly contradicts the existence of any promises or agreements. Rebollar was specifically admonished, in detail, as to the statutory maximum sentence for each count and as to the uncertainty of the ultimate sentence determination. Rebollar specifically stated that there were no promises or guarantees accompanying his plea. Rebollar was specifically and in detail admonished as to the consequences of his plea of guilty and stated that he understood those consequences. The record precludes Rebollar’s claim that there was ineffective assistance that affected the knowing and voluntary nature of the plea. See, e.g., United States v. Story, 439 F.3d 226 (5th Cir. 2006). The record also precludes Rebollar’s claim that counsel failed to prepare adequately for the sentencing. The record shows that contrary to Rebollar’s allegations, his counsel did file objections to the presentence report and argued those objections. Counsel objected to the amount of drugs being attributed to Rebollar in the relevant-conduct determination; to the absence of a minor or minimal role adjustment; and to the criminal history calculation. Counsel also asked for a downward departure for Rebollar based on his conduct while incarcerated and cooperation with officials. There is no basis to find either deficient performance or prejudice. A section 2255 motion requires an evidentiary hearing unless the motion, the files, and the record conclusively show the prisoner is entitled to no relief. United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). On review of the motion to vacate and the 8 files and records of this case, this court finds that an evidentiary hearing is unnecessary. The record conclusively shows that Rebollar is entitled to no relief. IV. Conclusion Rebollar’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, (Docket Entry No. 147), is denied. The government’s motion to dismiss, (Docket Entry No. 156), is granted. The corresponding civil action is dismissed with prejudice. Under the AEDPA, a petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability requires “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has denied a claim on procedural grounds, the petitioner must also demonstrate that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. A certificate of appealability is “a jurisdictional prerequisite” for an appeal on the merits by a habeas petitioner. Miller-El v. Cockrell, 537 U.S. 322 (2003). When considering a request for a COA, “[t]he question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 1042. 9 Because Rebollar has not made the necessary showing, this court will not issue a certificate of appealability. Final judgment will issue by separate order. SIGNED on July 14, 2008, at Houston, Texas. ______________________________________ Lee H. Rosenthal United States District Judge
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