United States District Court, E.D. Kentucky, Southern Division, London
MAGISTRATE JUDGE'S REPORT AND
B ATKINS, UNITED STATES MAGISTRATE JUDGE.
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.
FACTS AND PROCEDURAL HISTORY
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.
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)].
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.
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.
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.
STANDARD OF REVIEW
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).
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).
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.
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).
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.
Attorney's Assumption that Guidelines are Mandatory
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 ...