United States v. Flores

MEMORANDUM AND RECOMMENDATION

Frances H. Stacy United States Magistrate Judge

Before the Magistrate Judge in this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2255 is Movant Javier Flores's § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No.197).^[1] After reviewing Movant's § 2255 Motion, the Government's Answer, Movant's Response to the Government's Answer, the record of the proceedings before the District Court in the underlying criminal case, and the applicable case law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Movant Javier Flores's § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Document No. 197) be DENIED.

I. Procedural History

Movant Javier Flores (“Flores”), who is currently in the custody of the United States Bureau of Prisons, is seeking federal habeas corpus relief under 28 U.S.C. § 2255. This is Flores's first attempt at § 2255 relief. Flores raises a claim of ineffective assistance of counsel in light of the

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United States Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019). He alleges that counsel was ineffective for failing to advise him not to plead guilty to violating § 924(c)

On November 15, 2017, Perry Fluellen, Brandon Rashard Carter, Steve Malala and Flores were charged in a six-count Indictment. (Document No. 1). Flores and his co-defendants were charged with three counts of aiding and abetting aggravated bank robbery, in violation of 18 U.S.C. §§ 2113(a)(d) and 2 (Counts 1, 3, & 5), and aiding and abetting carry, use, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. (Counts 2, 4, & 6). Flores, pursuant to a written Plea Agreement, pleaded guilty to Counts 1, 5 and 6. (Document No. 83, Transcript of Rearraignment, Document No. 158). The written Plea Agreement is signed by Flores, and was thoroughly discussed at the Rearraignment. The signed written Plea Agreement makes clear that Flores “is pleading guilty because he is in fact guilty of the charges contained in Counts One, Five, and Six of the Indictment.” (Document No. 83, ¶ 14), and contains an Addendum, also signed by Flores, that states that he “consulted with my attorney and fully understand all my rights with respect to the indictment pending against me. My attorney has fully explained, and I understand, all my rights with respect to the provisions of the United States Sentencing Commission's Guidelines Manual which may apply in my case. I have read and carefully reviewed every part of this plea agreement with my attorney. I understand this agreement and I voluntarily agree to its terms.” (Document No. 83, p. 15). The Plea Agreement includes a waiver of appeal and collateral review. (Document No. 83, ¶ 4). Additionally, the transcript of the Rearraignment confirms that Flores had discussed the agreement with his attorney and understood the terms of the plea agreement, the charges, the elements of the crimes, the rights he would give up if he pleaded guilty, the possible penalties, the sentencing process, and in particular, the

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guidelines, and that he was pleading guilty because he was guilty. (Document No. 158, p.5-14).

The record further reflects that the Government summarized the facts it was prepared to prove if the case proceeded to trial. In response, Flores confirmed the accuracy of the summary and his role in the offense. The Prosecutor summarized the facts the Government was prepared to prove the guilt of Flores as follows:

Your Honor, if the Government was called upon to prove the facts of this case, the Government would prove beyond a reasonable doubt each of the elements of Counts 1, 5, and 6 and they would be the following: that on June 2^nd of 2017, the Prosperity Bank located at 7950 Westheimer in Houston, Texas, which is within the Southern District of Texas, was robbed at gunpoint by two black males at approximately 9:25 a.m

The two black males, both with firearms and wearing masks and gloves, entered the bank. The door was engaged with a manual activation lock. So, customers had to be buzzed in; but a bank employee said that she buzzed them in out of habit before looking at the robbers

The robbers ordered all employees to the floor. The first suspect jumped the teller counter and ordered the teller to put all the money in a black zipper bag while the other suspect paced around the lobby waving his gun. The bank employees complied with the robbers' demands fearing for their lives

The suspects then fled on foot running northbound through the parking lot before jumping a fence and fleecing in a sedan. A witness observed a gray Honda Accord acting suspiciously in the FedEx parking lot before leaving; and the driver was wearing a hoodie. This was close to the bank.

The total amount stolen was $40, 645; and at the time of the robbery, the Prosperity Bank was insured by the Federal Deposit Insurance Corporation.

Following the string of bank robberies and press coverage of surveillance videos, a tip was received that the robber shown in the surveillance footage was a Perry Fluellen. In June of 2017, FBI agents then engaged the Houston Police Department's Criminal Apprehension Team in an effort to locate Mr. Fluellen and the gray Honda Accord that had been used in previous robberies.

On June 20^th of 2017, Sergeant Kerry Richards and his team located the gray Honda Accord at the Alexan Ashford Apartments located at 1200 Dairy Ashford and began surveillance of its movements.

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On the night of June 20^th of 2017, members of the CAT team observed Mr. Fluellen and the subjects later identified as Javier Flores, this Defendant in court today, and Brandon Carter meet and converse for about 30 minutes in the parking lot at 1200 Dairy Ashford Street before going their separate ways.

Fluellen left in a red Nissan bearing paper tag number 68G 0704; and at approximately 8:35 a.m. on June 21^st of 2017, officers observed Mr. Fluellen walking towards the gray Honda parked in the complex carrying a pink bag. AS the Accord pulled out of the apartment parking lot, it briefly pulled next to a Lincoln MKS vehicle.

At this time, Brandon Carter entered the driver's side of the Accord. Then, the Accord, with Carter and fluellen, and the Lincoln MKS with Mr. Flores in court today, the man later identified also with them, Steve Malala, pulled off together with the Honda Accord following the Lincoln.

The vehicle left 1200 Dairy Ashford and drove to the nearby Exxon gas station where the driver of the gray Accord, Brandon Carter, met with the driver of the black MKS, Javier Flores, and exchanged something with their hands.

The vehicles then drove down the Katy Freeway in tandem. The vehicles flanked a BBVA Compass Bank located at 333 South Fry Road, Katy, Texas. The Lincoln backed into a parking spot at the McDonald's next door with a clear line of sight to the front doors of the bank.

The Accord then pulled up to the bank, and the passengers of the Accord entered the bank masked and armed with firearms and robbing it. The suspect ran out of the bank getting back into the Acord, and both the Lincoln and Accord left the area together.

In the bank, the employees stated that at 9:30 a.m. the black males entered the bank demanding that everybody get down and pointing their firearms at the individuals. The suspect had a black duffel bag, black handgun, and caused them to fear for their lives.

The suspect jumped over the teller counter and stole from the teller drawers. He took a band of money containing a GPS tracker and bait bills. A list of bait bills taken by the robber was also provided to the police. The total loss to this bank was $4, 013.

At the time of this robbery, the BBVA Compass Bank was insured by the Federal Deposit Insurance Company-Corporation. Following the robbery, officers pulled in behind the Accord at I-10 and South Dairy Ashford. The vehicle exited I-10, and Mr. Fluellen threw out the money band with the tracker. This money was

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recovered later by officers.

The vehicle then pulled into a hotel parking lot and turned towards the Alexan Apartments. The Accord came to an abrupt stop in the parking lot, and Carter and Fluellen took off on foot. The suspects jumped a fence and were taken into custody within the apartment complex.

On the route ran by Mr. Fluellen and Mr. Carter, a pink bag and a black zipper bag were recovered. Inside the black bag, they found mixed bills of U.S. currency, including bait bills stolen from the BBVA Compass Bank; cash straps; sunglasses; marijuana; and a Firestar .40 caliber pistol loaded with .40 caliber ammunition. And the firearm would function as designed.

In the pink bag dropped by Fluellen, a Houston Texans' hoodie, gloves, gray sweatpants, and a bandanna were discovered. These items matched the clothing worn by the robbery suspect at the BBVA Bank.

In a post-arrest statement, Mr. Fluellen admitted to his involvement in several robberies. He admitted that on June 2, 2017, Mr. Flores, the Defendant in court today, chose the Prosperity Bank to rob; and Mr. Fluellen went in with Brandon Carter and robbed it. He said he [had] a gun but Carter did not.

But on June 21^st, Mr. Fluellen said that he drove out to Katy with Mr. Carter and Mr. Flores and called Carter and said that the BBVA looked like a good bank. Mr. Fluellen went in. After the robbery, he threw the money with the tracker out; and Mr. Carter drove away in the getaway vehicle.

In a post-arrest statement,