Calderon-Canas v. United States

JORGE CALDERON-CANAS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 3:16-CV-1764-M-BH

No. 3:13-CR-466-M (5)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

September 24, 2019

MEMORANDUM OPINION AND ORDER

Based on the relevant findings and applicable law, the Motion Under 28 U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, received on June 23, 2016 (doc. 2), as amended (doc. 8), is DENIED with prejudice.

I. BACKGROUND

Jorge Calderon-Canas (Movant) challenges his federal conviction and sentence in Cause No. 3:13-CR-466-M. The respondent is the United States of America (Government).

On March 26, 2014, Movant was charged by superseding indictment with conspiracy to distribute a schedule II controlled substance in violation of 21 U.S.C. § 846 (count one), and illegal reentry after removal in violation of 8 U.S.C. § 1326(a), (b)(2) (count two). (See doc. 105.)¹ He pled guilty to count one on June 10, 2014. (See doc. 176.) The United States Probation Office (USPO) filed a Presentence Report (PSR) on September 12, 2014, applying the 2013 United States Sentencing Guidelines Manual (USSG). (See doc. 260-1 at 9, ¶ 32). The USPO filed an addendum on March 13, 2015, that applied the 2014 USSG. (See doc. 316 at 2.) Because Movant had two prior Texas felony convictions for possession with intent to deliver a controlled substance that were considered to be controlled substance offenses, it found him to be a career offender with a criminalhistory category of six under USSG § 4B1.1(b). (See doc. 260-1 at 10, ¶ 39, at 11, ¶¶ 44-45, at 12, ¶ 50.) But for this finding, he would have had a criminal history category of four. (See doc. 260-1 at 12, ¶ 50.) With an offense level of 29, the resulting guideline range was 151-188 months of imprisonment. (See doc. 316-1 at 2.) On May 14, 2015, Movant was sentenced to 156 months' imprisonment. (See doc. 335 at 2.) His appeal was dismissed because it did not present any non-frivolous issue. (See doc. 369.)

Movant contends that his trial counsel was ineffective for failing to object to the career offender enhancement under the sentencing guidelines. (See No. 3:16-CV-1764-M, doc. 8 at 5.)²

II. SCOPE OF RELIEF AVAILABLE UNDER § 2255

"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well-established that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)).

A failure to raise a claim on direct appeal may procedurally bar an individual from raising the claim on collateral review. United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Defendants may only collaterally attack their convictions on grounds of error omitted from their direct appeals upon showing "cause" for the omission and "actual prejudice" resulting from the error. Shaid, 937 F.2d at 232. However, "there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal" because "requiring a criminal defendant to bring [such] claims on direct appeal does not promote the[] objectives" of the procedural default doctrine, "to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro v. United States, 538 U.S. 500, 503-04 (2003). The Government may also waive the procedural bar defense. Willis, 273 F.3d at 597.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment to the United States Constitution provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. art. VI. It guarantees a criminal defendant the effective assistance of counsel, at trial and on appeal. Strickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). To successfully state a claim of ineffective assistance of counsel, the prisoner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his or her defense. Id. at 687. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000).

In determining whether counsel's performance is deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. 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 outcome." Id. at 694; Williams v. Taylor, 529U.S. 362, 393 n.17 (2000) (inquiry focuses on whether counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair). 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 counsel's alleged errors. Strickland, 466 U.S. at 695-96.

To show prejudice in the sentencing context, a petitioner must demonstrate that the alleged deficiency of counsel created a reasonable probability that his or her sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"). One cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations are insufficient to obtain relief under § 2255. United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989); see also Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (holding that "conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding").

A. Analytical Framework

Movant contends that counsel failed to argue that the career offender enhancement could not apply to him because the two Texas offenses of which he was convicted fall outside the definition of "controlled substance offense." (3:16-CV-1764-M, doc. 8. at 6.)

The appropriate approach to be used by courts in determining whether a prior conviction qualifies as one for a controlled substance offense as defined in the career offender sentencing guideline, § 4B1.1(b),³ depends on whether the statute setting out the offense is divisible orindivisible. See United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016) (citing United States v. Najera-Mendoza, 683 F.3d 627, 629 (5th Cir. 2012)). If the statute sets out "a single set of elements [defining]," or "various means of committing," a single crime or offense, it is indivisible. United States v. Lerma, 877 F.3d 628, 631 (5th Cir. 2017); United States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016). If the statute "lists multiple, alternative elements, and so effectively creates 'several different ... crimes,'" it is divisible. Descamps v. United States, 570 U.S. 254, 263-64 (2013) (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). "An element of a crime must be distinguished from the means of satisfying a single element." Lerma, 877 F.3d at 631. The test for determining whether a statute alternatively sets out elements or alternative means of satisfying an element is whether a jury must agree on one of the statutory alternatives in reaching a verdict. Howell, 838 F.3d at 497.

Elements must be agreed upon by a jury. When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense not an element of the offense.

Id. at 498 (quoting Hinkle, 832 F.3d at 574-75).

If a statute is indivisible because it sets out a single set of elements, the sentencing court must apply the "categorical approach." Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). This approach requires the court to compare the elements of the statutory offense of which the defendant was convicted to the elements of the guideline offense. Howell, 838 F.3d at 494. The court "do[es] not consider the actual conduct of the defendant in committing the offense." Id.; see also Lerma, 877 F.3d at 631 ("The sentencing court is not permitted to review the particular facts of the case."). If the statute "criminalizes a greater swath of conduct than the elements of the relevant [Guidelines] offense," then a conviction under that statute cannot be used as a basis for enhancement under §4B1.1(b). See United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017), supplemented by 854 F.3d 284 (5th Cir. 2017).

If a statute is divisible because it lists alternative elements, the sentencing court must use the "modified categorical approach" to determine the elements under which the defendant was convicted. Mathis, 136 S.Ct. at 2253. Under this approach, the court looks "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of [committing]." Id. at 2249 (citations omitted). If the elements of the prior offense include conduct that is not included in the guideline offense, the prior offense is broader than the...