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Alcauter v. United States

United States District Court, S.D. Ohio, Eastern Division

December 18, 2017

LIBORIO ALCAUTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          SARGUS, CHIEF JUDGE

          REPORT AND RECOMMENDATION

          Norah McCann King, United States Magistrate Judge

         Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate (Doc. 873) and memorandum in support (Doc. 881), the Government's Answer to Petitioner's 28 U.S.C. § 2255 Motion (Doc. 904)(filed under seal), Petitioner's Reply to Government's Response to Motion under Title 28 U.S.C. Section 2255 (Doc. 928), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         On November 24, 2015, Petitioner pleaded guilty to two counts of willful failure to collect or pay over tax in violation of 26 U.S.C. § 7202, and to one count of employment of unauthorized aliens in violation of 8 U.S.C. § 1324a(a)(1)(A), (a)(2), (f)(1), and 18 U.S.C. § 2. On January 7, 2016, the Court imposed an aggregate term of 66 months' imprisonment, to be followed by three years' supervised release, and ordered restitution in the amount of $1, 127, 233.00. Judgment (Doc. 709). Petitioner now asserts that he was denied the effective assistance of counsel, because his attorneys advised him to enter a guilty plea, failed to explain the consequences of a guilty plea, and failed to advise him that his sentence exceeded the statutory maximum (claim one); because his attorneys failed to object to the calculation of his criminal history score (claim two); because his counsel failed to argue that his recommended guideline sentence significantly overstated his culpability and role in the offense and that he therefore qualified for a reduced sentence (claim three); and because his attorneys failed to present mitigating factors at sentencing (claim four). Respondent contends that these claims fail to warrant relief.

         Standard of Review

         In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or a defect in the trial court proceedings that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or when the trial court lacked jurisdiction, when the sentence exceeded the maximum sentence allowed by law, or when the judgment or conviction is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In the absence of constitutional error, the question is “whether the claimed error was a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). However, “‘[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances.'” DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (quoting United States v. Brown, 62 F.3d 1418 (6th Cir. 1995) (unpublished)). Further, non-constitutional claims not raised at trial or on direct appeal are waived on collateral review except where the errors amount to something akin to a denial of due process. Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion to vacate under § 2255 unless the petitioner shows: (1) cause and actual prejudice sufficient to excuse his failure to raise the claims previously; or (2) that he is “actually innocent” of the crime. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).

A petitioner who entered a guilty plea must show an error of constitutional magnitude that had a substantial and injurious effect or influence on the proceedings. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Abrahamson, 507 U.S. at 637). Therefore, a court may only grant relief under § 2255 if the petitioner demonstrates “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. at 736 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). A petitioner further bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. Vague and conclusory claims which are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961).

United States v. Noble, No. 1:14-cr-135, 2017 WL 626130, at *3 (N.D. Ohio Feb. 15, 2017).

         Ineffective Assistance of Counsel

         Petitioner contends that he was denied the effective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was deficient, or that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed” by the Sixth Amendment, and that this deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id.

         “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 599 U.S. 356, 371 (2010). Given the difficulties inherent in determining whether an attorney's performance was constitutionally deficient, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .” Strickland, 466 U.S. at 689. Nevertheless, “[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 judgment.” Id. at 691. Therefore, a petitioner must also establish prejudice in order to prevail on a claim of ineffective assistance of counsel. Id. at 692.

         In order to establish prejudice, a petitioner must demonstrate that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Because a petitioner must satisfy both prongs of Strickland in order to demonstrate the ineffective assistance of counsel, should a court determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.

         Petitioner was convicted on his guilty plea. Because a criminal defendant waives numerous constitutional rights when he pleads guilty, the guilty plea must be entered knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). “‘The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, a court must look at the totality of the circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976). Further, a criminal defendant cannot successfully challenge the voluntariness of his plea merely on the basis that he was motivated to plead guilty. Brady v. United States, 397 U.S. 742, 750 (1970).

         However, a petitioner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Strickland's two part test applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks, 852 F.2d at 884. In order to obtain relief on that basis, however, a petitioner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at

The second, or “prejudice” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. Petitioner has failed to meet this standard here.

         As noted, Petitioner claims that his attorneys failed to advise him of the consequences of pleading guilty and failed to object to the Court's imposition of a sentence that exceeded the statutory maximum. Additionally, Petitioner asserts that defense counsel failed to conduct adequate investigation of the law and applicable sentencing guidelines, and failed to act as an advocate during the plea and sentencing processes. Movant's Reply to Government's Response to Motion under Title 28 U.S.C. Section 2255 (Doc. 928, PageID# 2885). Petitioner states that he did not understand the terms of his Plea Agreement, but that he responded affirmatively to all of the Court's questions at the guilty plea hearing upon the instruction of his counsel. Id.

         (PageID# 2886). Petitioner states that his attorney told him that, if he did not plead guilty and agree to a sentence of 66 months, he would be facing ten years in prison. Petitioner asserts that his attorney performed inadequately during the sentencing proceedings, because his counsel failed to argue for a downward departure in Petitioner's criminal history score, failed to argue that Petitioner's recommended sentence under the advisory United States Sentencing Guidelines significantly overstated his culpability and role in the offense, and failed to investigate or present mitigating factors as grounds for a reduced sentence. Id. (PageID# 2885).

         In response, Respondent has submitted the Affidavit of Terry K. Sherman (filed under seal), which indicates in relevant part as follows:

I was retained as co-counsel to represent Liborio Alcauter when he was initially indicted, along with co-defendants, prior to September 23, 2014, in a multi-count drug conspiracy, gun and money laundering case. Mr. Alcauter was facing a possible sentence of a minimum of ten years to life in prison. On April 2, 2015, the Grand Jury returned a ...

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