1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAFAEL MACIAS-VASQUEZ, Case No.: 19-cr-432-AJB Petitioner, 12 ORDER DENYING PETITIONER’S v. 13 MOTION TO VACATE, SET ASIDE, UNITED STATES OF AMERICA, OR CORRECT SENTENCE 14 Respondent. PURSUANT TO 28 U.S.C. § 2255 15 (Doc. No. 44) 16 17 18 Petitioner Rafael Macias-Vasquez moves under 28 U.S.C. § 2255 (“Section 2255”) 19 to Vacate, Set Aside, or Correct his Sentence on the basis of ineffective assistance of 20 counsel. (Doc. No. 44.) The United States opposed the motion. (Doc. No. 52.) For the 21 reasons discussed below, the Court DENIES the Section 2255 motion. 22 I. BACKGROUND 23 On February 7, 2019, Petitioner waived Indictment and the United States filed an 24 Information charging Petitioner with importation of methamphetamine, in violation of 21 25 U.S.C. §§ 952, 960. (Doc. No. 11.) On December 17, 2019, Petitioner pleaded guilty to the 26 single-count Information. (Doc. No. 36.) An interpreter was present during the December 27 17, 2019 plea colloquy. (See Doc. No. 52, Exh. 1.) During that plea hearing, Petitioner was 28 represented by his attorney, Mr. Frederick M. Carroll. Petitioner confirmed that his plea 1 agreement was translated into Spanish for him, and that he understood the plea agreement. 2 (Id.) On March 9, 2020, the Court sentenced Petitioner to 46 months in custody. (Doc. No. 3 43.) On June 30, 2020, Defendant filed a motion requesting habeas relief pursuant to 28 4 U.S.C. § 2255. (Doc. No. 52.) On September 30, 2020, the United States moved the Court 5 for an order waiving the attorney-client privilege as to all matters and facts presented in 6 Petitioner’s Section 2255 motion. (Doc. No. 49.) The Court ordered that on or before 7 November 1, 2020, Petitioner must respond in writing as to whether he desired to pursue 8 his Section 2255 motion, or whether he desired to abandon the claim in order to avoid the 9 privilege waiver. (Doc. No. 50.) The Court noted that if Petitioner did not respond by 10 November 1, 2020, the Court would deem all communications between Petitioner and his 11 former counsel waived. (Id.) Petitioner did not respond by the deadline, and accordingly 12 waived his attorney-client privilege. The Court also ordered that the United States respond 13 to the Section 2255 motion by January 1, 2021, and that Petitioner be permitted to file a 14 reply by February 1, 2021. The United States filed an opposition on December 21, 2020, 15 but Petitioner did not reply. This order follows. 16 II. LEGAL STANDARD 17 Under Section 2255, a petitioner is entitled to relief if the sentence (1) was imposed 18 in violation of the Constitution or the laws of the United States, (2) was given by a court 19 without jurisdiction to do so, (3) was in excess of the maximum sentence authorized by 20 law, or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 21 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). Here, Petitioner alleges his sentence 22 was imposed in violation of his Sixth Amendment right to effective assistance of counsel. 23 Strickland v. Washington, 466 U.S. 668, 688 (1984); United States v. Alferahin, 433 F.3d 24 1148, 1160–61 (9th Cir. 2006). 25 III. DISCUSSION 26 Petitioner alleges his counsel was ineffective due to (1) a language barrier that 27 caused Petitioner to not understand the nature of the charge and the consequences of his 28 plea, and (2) Counsel’s failure to communicate mitigating factors to the Court. (Doc. No. 1 44.) The Court addresses both arguments below. 2 A. Ineffective Assistance of Counsel 3 The Supreme Court has held “that the two-part Strickland v. Washington test applies 4 to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 5 474 U.S. 52, 58–59 (1985). In a claim of ineffective assistance of counsel, the petitioner 6 must meet the Strickland test by showing that (1) under an objective standard, “counsel’s 7 assistance was not within the range of competence demanded of counsel in criminal cases” 8 and (2) the petitioner suffered actual prejudice because of this incompetence. See Lambert 9 v. Blodgett, 393 F.3d 943, 979–80 (9th Cir. 2004). “Unless a defendant makes both 10 showings, it cannot be said that the conviction . . . resulted from a breakdown in the 11 adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687. 12 With respect to the first factor, “[w]hen a convicted defendant complains of the 13 ineffectiveness of counsel’s assistance, the defendant must show that counsel’s 14 representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 15 687–88. This involves proving “that counsel’s performance was deficient,” by “showing 16 that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 17 guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also 18 Iaea v. Sunnn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland). 19 As to the second factor, “in order to satisfy the ‘prejudice’ requirement, the 20 defendant must show that there is a reasonable probability that, but for counsel’s errors, he 21 would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 22 58–59. “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a 23 defendant has the assistance necessary to justify reliance on the outcome of the 24 proceeding.” Strickland, 466 U.S. at 691–92. “A convicted defendant making a claim of 25 ineffective assistance must identify the acts or omissions of counsel that are alleged not to 26 have been the result of reasonable professional judgment.” Id. at 690. Then, the court 27 evaluates “whether, in light of all the circumstances, the identified acts or omissions were 28 outside the wide range of professionally competent assistance.” Id. 1 1. Petitioner’s Argument That He Did Not Understand the Nature of 2 The Charge and the Consequences of His Plea 3 Petitioner’s first basis in arguing ineffective assistance of counsel is that due to a 4 “language barrier,” and “lack of knowledge,” Petitioner did not appreciate the nature and 5 consequences of his guilty plea. (Doc. No. 44 at 6.) In particular, Petitioner states he was 6 “under the impression” that his sentence would be lower, and he would be able to serve 7 time under home confinement due to his age and underlying medical conditions. (Id.) The 8 United States responds by pointing out that Petitioner offers no support or evidence for this 9 claim. The Court agrees with the United States. 10 Contrary to Petitioner’s contention that he did not appreciate the nature or 11 consequences of his plea, the record is abundant with evidence that Petitioner fully 12 understood his plea, and the possible consequences. First, in the Plea Agreement, (Doc. 13 No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAFAEL MACIAS-VASQUEZ, Case No.: 19-cr-432-AJB Petitioner, 12 ORDER DENYING PETITIONER’S v. 13 MOTION TO VACATE, SET ASIDE, UNITED STATES OF AMERICA, OR CORRECT SENTENCE 14 Respondent. PURSUANT TO 28 U.S.C. § 2255 15 (Doc. No. 44) 16 17 18 Petitioner Rafael Macias-Vasquez moves under 28 U.S.C. § 2255 (“Section 2255”) 19 to Vacate, Set Aside, or Correct his Sentence on the basis of ineffective assistance of 20 counsel. (Doc. No. 44.) The United States opposed the motion. (Doc. No. 52.) For the 21 reasons discussed below, the Court DENIES the Section 2255 motion. 22 I. BACKGROUND 23 On February 7, 2019, Petitioner waived Indictment and the United States filed an 24 Information charging Petitioner with importation of methamphetamine, in violation of 21 25 U.S.C. §§ 952, 960. (Doc. No. 11.) On December 17, 2019, Petitioner pleaded guilty to the 26 single-count Information. (Doc. No. 36.) An interpreter was present during the December 27 17, 2019 plea colloquy. (See Doc. No. 52, Exh. 1.) During that plea hearing, Petitioner was 28 represented by his attorney, Mr. Frederick M. Carroll. Petitioner confirmed that his plea 1 agreement was translated into Spanish for him, and that he understood the plea agreement. 2 (Id.) On March 9, 2020, the Court sentenced Petitioner to 46 months in custody. (Doc. No. 3 43.) On June 30, 2020, Defendant filed a motion requesting habeas relief pursuant to 28 4 U.S.C. § 2255. (Doc. No. 52.) On September 30, 2020, the United States moved the Court 5 for an order waiving the attorney-client privilege as to all matters and facts presented in 6 Petitioner’s Section 2255 motion. (Doc. No. 49.) The Court ordered that on or before 7 November 1, 2020, Petitioner must respond in writing as to whether he desired to pursue 8 his Section 2255 motion, or whether he desired to abandon the claim in order to avoid the 9 privilege waiver. (Doc. No. 50.) The Court noted that if Petitioner did not respond by 10 November 1, 2020, the Court would deem all communications between Petitioner and his 11 former counsel waived. (Id.) Petitioner did not respond by the deadline, and accordingly 12 waived his attorney-client privilege. The Court also ordered that the United States respond 13 to the Section 2255 motion by January 1, 2021, and that Petitioner be permitted to file a 14 reply by February 1, 2021. The United States filed an opposition on December 21, 2020, 15 but Petitioner did not reply. This order follows. 16 II. LEGAL STANDARD 17 Under Section 2255, a petitioner is entitled to relief if the sentence (1) was imposed 18 in violation of the Constitution or the laws of the United States, (2) was given by a court 19 without jurisdiction to do so, (3) was in excess of the maximum sentence authorized by 20 law, or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 21 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). Here, Petitioner alleges his sentence 22 was imposed in violation of his Sixth Amendment right to effective assistance of counsel. 23 Strickland v. Washington, 466 U.S. 668, 688 (1984); United States v. Alferahin, 433 F.3d 24 1148, 1160–61 (9th Cir. 2006). 25 III. DISCUSSION 26 Petitioner alleges his counsel was ineffective due to (1) a language barrier that 27 caused Petitioner to not understand the nature of the charge and the consequences of his 28 plea, and (2) Counsel’s failure to communicate mitigating factors to the Court. (Doc. No. 1 44.) The Court addresses both arguments below. 2 A. Ineffective Assistance of Counsel 3 The Supreme Court has held “that the two-part Strickland v. Washington test applies 4 to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 5 474 U.S. 52, 58–59 (1985). In a claim of ineffective assistance of counsel, the petitioner 6 must meet the Strickland test by showing that (1) under an objective standard, “counsel’s 7 assistance was not within the range of competence demanded of counsel in criminal cases” 8 and (2) the petitioner suffered actual prejudice because of this incompetence. See Lambert 9 v. Blodgett, 393 F.3d 943, 979–80 (9th Cir. 2004). “Unless a defendant makes both 10 showings, it cannot be said that the conviction . . . resulted from a breakdown in the 11 adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687. 12 With respect to the first factor, “[w]hen a convicted defendant complains of the 13 ineffectiveness of counsel’s assistance, the defendant must show that counsel’s 14 representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 15 687–88. This involves proving “that counsel’s performance was deficient,” by “showing 16 that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 17 guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also 18 Iaea v. Sunnn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland). 19 As to the second factor, “in order to satisfy the ‘prejudice’ requirement, the 20 defendant must show that there is a reasonable probability that, but for counsel’s errors, he 21 would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 22 58–59. “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a 23 defendant has the assistance necessary to justify reliance on the outcome of the 24 proceeding.” Strickland, 466 U.S. at 691–92. “A convicted defendant making a claim of 25 ineffective assistance must identify the acts or omissions of counsel that are alleged not to 26 have been the result of reasonable professional judgment.” Id. at 690. Then, the court 27 evaluates “whether, in light of all the circumstances, the identified acts or omissions were 28 outside the wide range of professionally competent assistance.” Id. 1 1. Petitioner’s Argument That He Did Not Understand the Nature of 2 The Charge and the Consequences of His Plea 3 Petitioner’s first basis in arguing ineffective assistance of counsel is that due to a 4 “language barrier,” and “lack of knowledge,” Petitioner did not appreciate the nature and 5 consequences of his guilty plea. (Doc. No. 44 at 6.) In particular, Petitioner states he was 6 “under the impression” that his sentence would be lower, and he would be able to serve 7 time under home confinement due to his age and underlying medical conditions. (Id.) The 8 United States responds by pointing out that Petitioner offers no support or evidence for this 9 claim. The Court agrees with the United States. 10 Contrary to Petitioner’s contention that he did not appreciate the nature or 11 consequences of his plea, the record is abundant with evidence that Petitioner fully 12 understood his plea, and the possible consequences. First, in the Plea Agreement, (Doc. 13 No. 36), Petitioner indicated that he understood the possible consequences of the crime to 14 which he was pleading guilty, including that the crime carried a mandatory minimum of 15 ten years in prison. (Id. at 4.) Petitioner also affixed his initials to each page of the Plea 16 Agreement, signed the last page, and attested that he understood the charges and the 17 consequences of the plea. (Id.) 18 Secondly, at the change of plea hearing before Magistrate Judge Michael S. Berg, 19 Judge Berg, with an interpreter present, confirmed that Petitioner initialed and signed each 20 page of the Plea Agreement. (Doc. No. 52-1 at 5–6.) Petitioner also represented at the 21 hearing that the Plea Agreement was “translated . . . into Spanish.” (Id.) Judge Berg also 22 proceeded through a comprehensive and thorough Rule 11 colloquy to ensure that 23 Petitioner was competent to enter the plea, understood the rights he was waiving, and 24 understood the immigration implications of entering a guilty plea. (Id.) 25 Third, Petitioner’s former counsel, Mr. Carroll submitted a declaration, explaining 26 that throughout the course of his representation of Petitioner, counsel routinely met with 27 Petitioner, including before each court appearance. Counsel states that “[d]uring each of 28 these meetings, I was assisted by a Spanish language interpreter.” (Doc. No. 52-3 at 3.) 1 Moreover, counsel also affirmed that before Petitioner pleaded guilty, counsel “personally 2 reviewed the Plea Agreement with Mr. Macias Vasquez. During this meeting, I was 3 assisted by a Spanish language interpreter.” (Doc. No. 52-3 at 3.) 4 Petitioner has not provided any evidence or further argument to rebut any of these 5 facts. Under the first Strickland prong, counsel’s assistance was well within the range of 6 competence demanded of counsel in criminal cases. There is no evidence otherwise. As 7 such, the Court need not reach the second Strickland prong. The Court concludes that this 8 ground does not constitute an adequate basis to find ineffective assistance of counsel. 9 2. Petitioner’s Argument That Counsel Did Not Effectively 10 Communicate to the Court Petitioner’s Medical Condition and 11 Vulnerability to COVID-19 12 Petitioner’s second claim for relief fares no better. In Petitioner’s second argument 13 alleging ineffective assistance of counsel, Petitioner argues that his former attorney did not 14 inform the Court of Petitioner’s medical condition, and vulnerability to COVID-19. (Doc. 15 No. 44 at 6.) First, as the United States persuasively argues, Petitioner was sentenced on 16 March 9, 2020, a time at which the impact of COVID-19 was not fully known within the 17 United States. (Doc. No. 52 at 8.) Thus, it would be unreasonable to require counsel to 18 argue that Petitioner was at a high risk for contracting COVID-19 before the impact of the 19 virus on the United States was fully understood. 20 Second, Petitioner’s claim that counsel failed to bring Petitioner’s medical 21 conditions to the Court’s attention is belied by the record. Indeed, in Petitioner’s sentencing 22 memorandum, (Doc. No. 41), counsel cited to Petitioner’s medical condition and gambling 23 addiction to argue for a 24-month sentence. Furthermore, counsel again addressed 24 Petitioner’s medical condition before the Court at the March 9, 2020 sentencing hearing. 25 (Doc. No. 48.) 26 Because Petitioner has failed to establish that counsel’s conduct was deficient under 27 the first Strickland prong, the Court will not address the second Strickland prong. This 28 claim for relief thus fails. 1 |}IV. CONCLUSION 2 For the foregoing reasons, Petitioner’s motion is DENIED. Because the record 3 ||refutes Petitioner’s allegations and otherwise precludes habeas relief, Petitioner’s motion 4 ||is DENIED without an evidentiary hearing. Finally, the Court denies Petitioner a 5 || certificate of appealability. A petitioner is required to obtain a certificate of appealability 6 ||in order to appeal a decision denying a motion under 28 U.S.C. § 2255. A court may issue 7 ||a certificate of appealability where the petitioner has made a “substantial showing of the 8 ||denial of a constitutional right,” and reasonable jurists could debate whether the motion 9 ||should have been resolved differently, or that the issues presented deserve encouragement 10 || to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). This Court finds 11 ||that Petitioner has not made the necessary showing. A certificate of appealability is 12 || therefore DENIED. 13 14 IT IS SO ORDERED. 15 Dated: May 12, 2021 © 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28