Gray v. United States

RICHARD GRAY, Fed. Reg. No. 22708-380, Movant, v. UNITED STATES OF AMERICA, Respondent.

EP-18-CV-93-PRM

EP-13-CR-1832-PRM-4

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

July 23, 2019

MEMORANDUM OPINION AND ORDER DENYING MOVANT'S MOTION TO VACATE

On this day, the Court considered Movant Richard Gray's [hereinafter "Movant"] pro se "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" (ECF No. 735) [hereinafter "Motion to Vacate"], filed on March 26, 2018; Movant's "Memorandum in Support of Section 2255 Motion" (ECF No. 750) [hereinafter "Memorandum in Support"], filed on May 18, 2018; and the Government's "Response to Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" (ECF No. 774) [hereinafter "Response"], filed on September 14, 2018, in the above-captioned cause. After due consideration, the Court is of the opinion that Movant's Motion to Vacate should be denied, for the reasons that follow. Additionally, the Court is of the opinion that Movant should be denied a certificate of appealability.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 21, 2013, a grand jury returned an "Indictment" (ECF No. 16) charging Movant with one count of Sex Trafficking By Force, Fraud, and Coercion in violation of 18 U.S.C. §§ 1591(a)(1),(2) and (b)(1) and one count of Conspiracy to Sex Traffic Persons in violation of 18 U.S.C. § 1594(c). Then, on January 15, 2014, a grand jury charged Movant in a "Second Superseding Indictment" (ECF No. 138) with additional counts of Sex Trafficking By Force, Fraud, and Coercion in violation of 18 U.S.C. §§ 1591(a)(1),(2) and (b)(1), and Conspiracy to Sex Traffic Persons in violation of 18 U.S.C. § 1594(c). Additionally, the grand jury charged Movant with Sex Trafficking of Children in violation of 18 U.S.C. §§ 1591(a)(1),(2) and (b)(2) and Transportation for Prostitution in violation of 18 U.S.C. § 2421. Second Superseding Indictment at 5, 9.

Attorney Edgar Holguin was initially appointed to represent Movant on behalf of the Federal Public Defender's office. Movant filed a "Motion to Withdraw Counsel of Record" (ECF No. 201), which wassigned on March 18, 2014, and entered on March 24, 2014. The Court held a hearing on Movant's Motion to Withdraw Counsel of Record and granted the motion. Order Granting Mot. to Withdraw Counsel of Record, Mar. 26, 2014, ECF No. 253. Accordingly, Attorney Holguin's appointment was terminated, and Attorney Thomas Brady was substituted to represent Movant at trial. Id.

On December 1, 2014, the Court held a Frye Hearing. See generally Resp. Ex. 21 (Motion Hearing Transcript). At the hearing, the Government put its plea offer—an offer of twenty-five years' imprisonment—on the record. Id. at 29:21-22. The Court reviewed the pre-plea PSR provided to the defendants and noted that, if the defendants were to go to trial and be found guilty, they would face a potential sentence of lifetime imprisonment. Id. at 33:1-5. After reviewing this information, Movant rejected the Government's plea offer. Id. at 43:5-8.

On January 5, 2015, Jury Selection and Trial commenced. Minute Entry, ECF No. 497. On January 13, 2015, the parties concluded presenting evidence, and the Court charged the jury. Minute Entry, ECF No. 508. The jury completed deliberations onJanuary 16, 2015, and reached a unanimous verdict. See Jury Note 10 (Sealed), ECF No. 529. The jury found Movant not guilty as to count 3 of the Indictment and guilty as to counts 4, 6, 9, and 11. Verdict, Jan. 16, 2015, ECF No. 531.

On June 25, 2015, the Court held Movant's sentencing hearing. See generally Resp. Ex. 25 (Sentencing Hearing Transcript). The Court reviewed Movant's Presentence Investigation Report (PSR) and discussed Movant's offense level. Specifically, the individual offenses with the highest base offense level had a base offense level of 30 and an adjusted offense level of 38 because four points were added for the use of force; two points were added because of serious bodily injury during an assault in Killeen, Texas; and a two-level enhancement was applied due to the use of a computer. Id. at 5:8-19. Because there were multiple offenses, adding up to six units, Movant's final adjusted offense level was 44, and his criminal history category was two. Id. at 7:6-25. Because the Sentencing Guidelines' highest offense level is 43, any offense level that exceeds 43 is treated as a 43 pursuant to the guidelines; thus, Movant's offense level was treated as a 43. Id. at 8:1-4. The corresponding guidelines' range for an offense level of 43 is lifeimprisonment. Id. The Court sentenced Movant to a guidelines' sentence of life imprisonment as to each of counts four, six, and nine, and to 120 months imprisonment as to count eleven, to be served concurrently. J. in a Criminal Case, June 30, 2015, ECF No. 628.

On March 26, 2018, Movant filed his Motion to Vacate. Therein, Movant challenges his sentence based on ineffective assistance of counsel. Specifically, Movant asserts that his counsel provided constitutionally ineffective assistance when the attorney failed to: (1) properly advise Movant of his sentencing exposure and, as a result, Movant rejected the prosecutor's plea offer of twenty-five years' imprisonment; (2) tell Movant that he could plead guilty and receive a three-level downward adjustment to his sentence; (3) advise Movant that he could request a bench trial; (4) object to the jury charge on count six of the Second Superseding Indictment, which constructively amended the Indictment; (5) request Movant's Facebook evidence which would have rebutted the testimony against him; (6) object to the selection of a jury without any African American members; (7) advise Movant that the ultimate decision to testify was his; (8) secure evidence to impeach a witness; (9) move for a mistrial after the prosecutionconstructively amended count six of the Second Superseding Indictment; (10) secure an expert on the credibility of a witness; (11) object to the use of force sentencing enhancement; (12) obtain a mental expert who would have testified that Movant returned from Iraq with Posttraumatic Stress Disorder; and (13) ask the Court to consider Movant's age and object to the excessive sentence. Mot. to Vacate at 4-8, Mar. 26, 2018, ECF No. 735. For these reasons, Movant asks the Court to vacate his sentence and allow him the following relief: (1) accept the plea offer, (2) plead guilty to the Second Superseding Indictment, (3) receive a new trial, and/or (4) have a new sentencing hearing. Id. at 12.

On May 18, 2018, Movant filed his Memorandum in Support, which provides Movant's legal theories supporting his Motion to Vacate. On September 14, 2018, the Government filed its Response.¹

II. LEGAL STANDARD

A § 2255 motion "provides the primary means of collateral attack on a federal sentence." Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)). Relief under § 2255 is warranted for errors that occurred at trial or at sentencing. Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). Before a court will grant relief pursuant to § 2255, a movant must establish: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).

A movant may collaterally attack a sentence by alleging ineffective assistance of counsel pursuant to the Sixth Amendment.The Sixth Amendment not only guarantees a criminal defendant the right to a speedy trial, but also the right to the effective assistance of counsel. Lee v. United States, 137 S. Ct. 1958, 1964 (2017). A court analyzes an ineffective assistance of counsel claim presented in a § 2255 motion under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001).

Pursuant to the Strickland test, to succeed on a claim of ineffective assistance of counsel, a movant must prove: (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689-94. In other words, a movant must show that his counsel's performance was outside the broad range of what is considered reasonable assistance and that this deficient performance led to an unfair and unreliable conviction and sentence. United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001). The burden of proof is on the movant alleging ineffective assistance. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999). If the movant fails to prove one prong, it is not necessary to analyze theother. See Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) ("A court need not address both components of the inquiry if the defendant makes an insufficient showing on one."); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.").

III. ANALYSIS

A. Counsel's Advice During Plea Bargaining

"Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process." Lafler v. Cooper, 566 U.S. 156, 162 (2012) (citing Missouri v. Frye, 566 U.S. 134, 132 (2012)). The two-part test established in Strickland v. Washington applies; accordingly, successful challenges to guilty pleas based on ineffective assistance of counsel must establish that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced as a result. Id. at 162-63 (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).

Thus, "[i]...