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United States v. Hernandez

United States District Court, E.D. Kentucky, Southern Division, London

January 28, 2019

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SANTOS HERNANDEZ HERNANDEZ, DEFENDANT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          EDWARD B ATKINS, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The Defendant, Santos H. Hernandez, brings this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. [R. 52; R. 24; R. 24]. Consistent with local practice, the matter is before the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the following reasons, the Court recommends that Hernandez's motion be denied.

         II. FACTS AND PROCEDURAL HISTORY

         In 2009, Santos H. Hernandez was convicted in two cases from the Eastern District of Tennessee. First, he was charged with aggravated felony for conspiracy to distribute and possession with intent to distribute 500 grams or more of cocaine hydrochloride in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). Second, he was charged with possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). [R. 1 at 1 (16-CR-17); R. 1 at 1 (16-CR-18)]. In each case he received a concurrent sentence of 72-months imprisonment, to be followed by a term of supervised release with a special condition that if he were to be deported, he shall not re-enter the United States without the permission of the Attorney General, and if he does re-enter, he shall report to the nearest United States Probation Office within 72 hours of re-entry. [R. 1-2 at 5 (16-CR-17); R. 1-2 at 5 (16-CR-18)]. Following his incarceration, Hernandez was released on supervision and subsequently deported on February 5, 2015.

         On January 12, 2016, Hernandez was found in Bell County, in the Eastern District of Kentucky. He was indicted and charged with unlawfully reentering the country subsequent to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). [R. 1 (16-CR-12)]. In addition, he was charged with violating his conditions of supervised release in each of the two cases arising from the Eastern District of Tennessee. These supervised release matters were transferred from the Eastern District of Tennessee to the Eastern District of Kentucky for resolution. [R. 1 (16-CR-17); R. 1 (16-CR-18)].

         Ultimately, Hernandez plead guilty to unlawfully reentering the country subsequent to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). [R. 26 (16-CR-12); R. 27 (16-CR-12)]. His sentencing on this offense occurred simultaneously with the dispositions of his supervised release violations, charging him with unlawfully reentering the country and failing to report his reentry to the probation office within seventy-two hours. At the sentencing, in the Eastern District of Kentucky, the District Court imposed a sentence of fifteen months of imprisonment for the supervised release violation in each of his two prior cases, to be served concurrently. In addition, he received a sentence-within guidelines- of sixty-four months of imprisonment for unlawful reentry subsequent to the commission of an aggravated felony, to be served consecutively to the sentences imposed on his supervised release violations. Consequently, Hernandez received a total sentence of Seventy-Nine (79) months for his offenses.

         Hernandez appealed each case, arguing that his sentence was procedurally unreasonable because the District Court: (1) offered no reasons to support the imposition of consecutive sentences and (2) failed to acknowledge its discretion to impose a concurrent sentence, thereby improperly treating the guidelines as mandatory. [R. 48 at 1-2]. In a five-page order, the Court of Appeals affirmed the sentence imposed by the District Court.

         Hernandez has now filed this instant motion to vacate pursuant to 28 U.S.C. § 2255 in each of the three cases. [R. 52]. Specifically, Hernandez contends that his attorney assumed the sentencing guidelines were mandatory. This, Hernandez contends, prevented him from presenting mitigating evidence in the form of a mercy letter, asking the Court to consider his illness and need for medical care as his only reasons for coming back to America. [R. 52 at 4-5]. The matter now stands ripe for review.

         III. STANDARD OF REVIEW

         Generally, a prisoner has a statutory right to collaterally attack his guilty plea, conviction or sentence. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). For a federal prisoner to prevail on a 28 U.S.C. § 2255 claim, he must show that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law nor open to collateral attack, or otherwise must show that there was “a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b).

         Put another way, for relief under 28 U.S.C. § 2255, the prisoner must show that: (1) his conviction resulted from an error of constitutional magnitude; (2) his sentence was imposed outside the statutory limits; or (3) an error of fact or law occurred that was so fundamental as to render the entire proceedings invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003), cert. denied, 540 U.S. 1133 (2004); see also Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003), cert. denied, 540 U.S. 879 (2003). He must sustain these allegations by a preponderance of the evidence. McQueen v. United States, 58 Fed.Appx. 73, 76 (6th Cir. 2003) (unpublished) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.”); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). If the prisoner alleges a constitutional error, he must establish by a preponderance of the evidence that the error “had a substantial and injurious effect or influence on the proceedings.” Watson, 165 F.3d at 488 (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Pough, 442 F.3d at 964. Alternately, if he alleges a non-constitutional error, he must establish “a fundamental defect which inherently results in a complete miscarriage of justice . . . an error so egregious that it amounts to a violation of due process.” Watson, 165 F.3d at 488 (citing United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990).

         To prevail on an ineffective assistance of counsel claim under Section 2255, the petitioner must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, he must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. In applying this test, reviewing courts must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance . . .” Id. Second, the petitioner must establish prejudice, by showing there is a reasonable probability that, but for counsel's unprofessional errors, the result of his proceedings would have been different. Id. at 694-95. Notably, “[w]hen deciding ineffective-assistance claims, courts need not address both components of the [deficient performance and prejudice] inquiry ‘if the defendant makes an insufficient showing on one.'” Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004); Strickland, 466 U.S. at 697.

         Decisions that “might be considered sound trial strategy” do not constitute ineffective assistance of counsel. Michel v. Louisiana, 350 U.S. 91, 101 (1955). While trial counsel's tactical decisions are not completely immune from Sixth Amendment review, they must be particularly egregious before they will provide a basis for relief. Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984). Further, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate] judgment.” West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 691). “Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992).

         IV. ANALYSIS

         This Court is obligated to broadly construe Defendant's pro se Motion to Vacate, evaluating his arguments according to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). In his motion, Hernandez claims that his attorney either believed the sentencing guidelines were mandatory or lead Hernandez to believe they were mandatory, impeding him from presenting his mitigating evidence. [R. 52 at 4-5]. Had he known the sentencing guidelines were not mandatory he would have submitted a mercy letter asking the Court to consider his illness, pain, and his need for “advanced American medical technology.” Id. As addressed below, this argument provides Hernandez no relief.

         A. Attorney's Assumption that Guidelines are Mandatory

         Hernandez claims that his attorney was ineffective in that he assumed that the guidelines were mandatory. Hernandez argues that this prevented him from presenting his mercy letter or any other mitigating evidence to the Court at his sentencing. However, the record evidence in the case directly ...


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