1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, Case No. 21-cr-03544-BAS-1 14 Case No. 23-cv-01853-BAS Plaintiff, 15 ORDER DENYING DEFENDANT’S MOTION TO 16 v. VACATE, SET ASIDE, OR
17 HECTOR ELISEO MENDOZA, CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (ECF No. 62) 18 Defendant.
19 20 21 Presently before the Court is Defendant Hector Eliseo Mendoza’s Motion to 22 Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Mot., ECF No. 62.) 23 The Government opposes. (ECF No. 64.) 24 Contrary to the representations in Defendant’s § 2255 Motion, Defendant did 25 not have a trial in his case. Instead, on June 6, 2022, he pled guilty to entering the 26 United States illegally after deportation in violation of 8 U.S.C. § 1326. (ECF No. 27 33.) The Court sentenced Defendant to thirty-seven months in custody. (ECF No. 1 who told him he would only be sentenced to eighteen months in custody; (2) the 2 Court inappropriately relied on old criminal convictions; (3) the Judge was too hard 3 on him; and (4) his counsel was ineffective because he never spoke with family 4 members and was a very bad attorney. (Mot.) 5 For the reasons stated below, the Court DENIES the Motion under 28 U.S.C. 6 § 2255. 7 I. Background 8 Defendant entered into a written plea agreement. (Plea Agreement, ECF No. 9 35.) In the Plea Agreement, Defendant agreed: (1) he was facing a maximum of 10 twenty years in custody (id. § III.A), (2) no one had made any promises to get him to 11 plead guilty other than those written in the Plea Agreement or made in open court 12 (id. § VI.B), (3) his sentence would be “within the sole discretion of the sentencing 13 judge who may impose the maximum provided by statute” (id. § VI.B), and (4) “any 14 estimate of the probable sentence by defense counsel is not a promise and is not 15 binding on the court” (id. § IX). At his plea colloquy, Defendant confirmed that this 16 Plea Agreement had been translated into Spanish for him, and he understood 17 everything in it. (Plea Colloquy 6:1–13, 7:2–4, ECF No. 60.) 18 In the Plea Agreement, Defendant also stated he was satisfied with the 19 representation of his attorney. (Plea Agreement § XV.) He waived his right to appeal 20 or collaterally attack his sentence except for the issue of ineffective assistance of 21 counsel. (Id. § XI.) 22 At his oral guilty plea, after being placed under oath (Plea Colloquy 3:4–16), 23 Defendant was again advised that he was facing a maximum of twenty years in 24 custody (id. 5:4–9). He said he understood the sentencing judge could sentence him 25 outside of his guideline range. (Id. 7:20–8:2.) He also confirmed that he was waiving 26 his right to appeal or collaterally attack his sentence. (Id. 6:16–22, 20–24.) 27 Defendant is a forty-two-year-old El Salvadoran who has been deported 1 deported after serving two years in custody following a 2005 conviction for sexual 2 assault of a child. (Id. ¶¶ 24–30.) He was deported after a 2016 misdemeanor 3 conviction for entering the United States illegally for which he served forty-five days 4 in custody. (Id.) And he was deported after serving another two-year sentence 5 following a 2020 conviction for false imprisonment with violence against his spouse 6 or cohabitant. (Id.) Defendant faced a guideline range of fifty-seven to seventy-one 7 months, and both the Government and the Probation Department recommended that 8 the Court sentence Defendant to forty-six months in custody. (Presentence Report 9 ¶ 79; Government’s Sentencing Summary Chart, ECF No. 39.) Defendant’s counsel 10 persuaded the Court that Defendant’s criminal history category was overrepresented. 11 (ECF No. 40.) Counsel submitted letters of support for Defendant at sentencing that 12 included a letter from the doctor treating Defendant’s mother suffering from 13 Parkinson’s disease and a letter from Defendant’s sister. (ECF No. 50-1.) The Court 14 ultimately sentenced Defendant to only thirty-seven months in custody. (ECF No. 15 44.) 16 Defendant now claims: (1) that he was deceived by his lawyer who told him 17 he would serve “a minimum [sic] of 18 months” (Mot., Ground One); (2) his first 18 offense was a long time ago, and he is now “sorry for hurting [his] wife,” but he then 19 contradictorily says that he has no criminal record (Mot., Ground Two); (3) the Judge 20 was too hard on him (Mot., Ground Three); and (4) his attorney never spoke to his 21 family members and is “very bad and only talks to [Defendant] with lies and 22 badmouthing the other lawyer and the Judge herself” (Mot., Ground Four). 23 II. Analysis 24 “[A] defendant who pleads guilty upon the advice of counsel may only attack 25 the voluntary and intelligent character of the guilty plea by showing that the advice 26 he received from counsel was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 979 27 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in a 1 Strickland test; that is, he must show, first, “that counsel’s assistance was not within 2 the range of competence demanded of counsel in criminal cases,” and second, that 3 he suffered actual prejudice as a result of this incompetence. Lambert, 393 F.3d at 4 979–80; Hill, 474 U.S. at 57–58. 5 “A deficient performance is one in which counsel made errors so serious that 6 []he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 7 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 8 668, 687 (1984)). “Review of counsel’s performance is highly deferential and there 9 is a strong presumption that counsel’s conduct fell within the wide range of 10 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 11 (9th Cir. 1987). The court should not view counsel’s actions through “the distorting 12 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 13 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)). 14 In order to satisfy the second “prejudice” prong in a guilty plea case, 15 “defendant must show that there is a reasonable probability that, but for counsel’s 16 errors, he would not have pled guilty and would have insisted on going to trial.” Hill, 17 474 U.S. at 59. For example, in United States v. Silveira, 997 F.3d 911 (9th Cir. 18 2021), the Ninth Circuit affirmed the district court’s determination that the defendant 19 would have likely faced a longer sentence had he proceeded to trial rather than accept 20 the plea agreement. Thus, in the absence of a viable defense, it was simply not 21 plausible that the defendant would have proceeded to trial even if his attorney’s 22 advice was deficient. Id. at 915–16. 23 Further, a waiver of appeal will be upheld if it was knowingly and voluntarily 24 made. United States v.
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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, Case No. 21-cr-03544-BAS-1 14 Case No. 23-cv-01853-BAS Plaintiff, 15 ORDER DENYING DEFENDANT’S MOTION TO 16 v. VACATE, SET ASIDE, OR
17 HECTOR ELISEO MENDOZA, CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (ECF No. 62) 18 Defendant.
19 20 21 Presently before the Court is Defendant Hector Eliseo Mendoza’s Motion to 22 Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Mot., ECF No. 62.) 23 The Government opposes. (ECF No. 64.) 24 Contrary to the representations in Defendant’s § 2255 Motion, Defendant did 25 not have a trial in his case. Instead, on June 6, 2022, he pled guilty to entering the 26 United States illegally after deportation in violation of 8 U.S.C. § 1326. (ECF No. 27 33.) The Court sentenced Defendant to thirty-seven months in custody. (ECF No. 1 who told him he would only be sentenced to eighteen months in custody; (2) the 2 Court inappropriately relied on old criminal convictions; (3) the Judge was too hard 3 on him; and (4) his counsel was ineffective because he never spoke with family 4 members and was a very bad attorney. (Mot.) 5 For the reasons stated below, the Court DENIES the Motion under 28 U.S.C. 6 § 2255. 7 I. Background 8 Defendant entered into a written plea agreement. (Plea Agreement, ECF No. 9 35.) In the Plea Agreement, Defendant agreed: (1) he was facing a maximum of 10 twenty years in custody (id. § III.A), (2) no one had made any promises to get him to 11 plead guilty other than those written in the Plea Agreement or made in open court 12 (id. § VI.B), (3) his sentence would be “within the sole discretion of the sentencing 13 judge who may impose the maximum provided by statute” (id. § VI.B), and (4) “any 14 estimate of the probable sentence by defense counsel is not a promise and is not 15 binding on the court” (id. § IX). At his plea colloquy, Defendant confirmed that this 16 Plea Agreement had been translated into Spanish for him, and he understood 17 everything in it. (Plea Colloquy 6:1–13, 7:2–4, ECF No. 60.) 18 In the Plea Agreement, Defendant also stated he was satisfied with the 19 representation of his attorney. (Plea Agreement § XV.) He waived his right to appeal 20 or collaterally attack his sentence except for the issue of ineffective assistance of 21 counsel. (Id. § XI.) 22 At his oral guilty plea, after being placed under oath (Plea Colloquy 3:4–16), 23 Defendant was again advised that he was facing a maximum of twenty years in 24 custody (id. 5:4–9). He said he understood the sentencing judge could sentence him 25 outside of his guideline range. (Id. 7:20–8:2.) He also confirmed that he was waiving 26 his right to appeal or collaterally attack his sentence. (Id. 6:16–22, 20–24.) 27 Defendant is a forty-two-year-old El Salvadoran who has been deported 1 deported after serving two years in custody following a 2005 conviction for sexual 2 assault of a child. (Id. ¶¶ 24–30.) He was deported after a 2016 misdemeanor 3 conviction for entering the United States illegally for which he served forty-five days 4 in custody. (Id.) And he was deported after serving another two-year sentence 5 following a 2020 conviction for false imprisonment with violence against his spouse 6 or cohabitant. (Id.) Defendant faced a guideline range of fifty-seven to seventy-one 7 months, and both the Government and the Probation Department recommended that 8 the Court sentence Defendant to forty-six months in custody. (Presentence Report 9 ¶ 79; Government’s Sentencing Summary Chart, ECF No. 39.) Defendant’s counsel 10 persuaded the Court that Defendant’s criminal history category was overrepresented. 11 (ECF No. 40.) Counsel submitted letters of support for Defendant at sentencing that 12 included a letter from the doctor treating Defendant’s mother suffering from 13 Parkinson’s disease and a letter from Defendant’s sister. (ECF No. 50-1.) The Court 14 ultimately sentenced Defendant to only thirty-seven months in custody. (ECF No. 15 44.) 16 Defendant now claims: (1) that he was deceived by his lawyer who told him 17 he would serve “a minimum [sic] of 18 months” (Mot., Ground One); (2) his first 18 offense was a long time ago, and he is now “sorry for hurting [his] wife,” but he then 19 contradictorily says that he has no criminal record (Mot., Ground Two); (3) the Judge 20 was too hard on him (Mot., Ground Three); and (4) his attorney never spoke to his 21 family members and is “very bad and only talks to [Defendant] with lies and 22 badmouthing the other lawyer and the Judge herself” (Mot., Ground Four). 23 II. Analysis 24 “[A] defendant who pleads guilty upon the advice of counsel may only attack 25 the voluntary and intelligent character of the guilty plea by showing that the advice 26 he received from counsel was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 979 27 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in a 1 Strickland test; that is, he must show, first, “that counsel’s assistance was not within 2 the range of competence demanded of counsel in criminal cases,” and second, that 3 he suffered actual prejudice as a result of this incompetence. Lambert, 393 F.3d at 4 979–80; Hill, 474 U.S. at 57–58. 5 “A deficient performance is one in which counsel made errors so serious that 6 []he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 7 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 8 668, 687 (1984)). “Review of counsel’s performance is highly deferential and there 9 is a strong presumption that counsel’s conduct fell within the wide range of 10 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 11 (9th Cir. 1987). The court should not view counsel’s actions through “the distorting 12 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 13 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)). 14 In order to satisfy the second “prejudice” prong in a guilty plea case, 15 “defendant must show that there is a reasonable probability that, but for counsel’s 16 errors, he would not have pled guilty and would have insisted on going to trial.” Hill, 17 474 U.S. at 59. For example, in United States v. Silveira, 997 F.3d 911 (9th Cir. 18 2021), the Ninth Circuit affirmed the district court’s determination that the defendant 19 would have likely faced a longer sentence had he proceeded to trial rather than accept 20 the plea agreement. Thus, in the absence of a viable defense, it was simply not 21 plausible that the defendant would have proceeded to trial even if his attorney’s 22 advice was deficient. Id. at 915–16. 23 Further, a waiver of appeal will be upheld if it was knowingly and voluntarily 24 made. United States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016). Courts 25 “will generally enforce the plain language of a plea agreement if it is clear and 26 unambiguous on its face.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 27 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 1 where there was a valid and enforceable waiver of the right to appeal. Id. at 1152– 2 53 (citing United States v. Vences, 19 F.3d 611, 6134 (9th Cir. 1999)). 3 Defendant fails to show that his attorney was ineffective. To the extent that he 4 is arguing that his attorney did not tell him he would receive such a lengthy sentence, 5 the record reflects otherwise. Both in the Plea Agreement and in open court, 6 Defendant said he understood when he was told that the sentence would be up to the 7 judge and he could be facing up to twenty years in custody. In his Plea Agreement, 8 Defendant specifically agreed that “any estimate of the probable sentence by defense 9 counsel is not a promise and is not binding on the court.” (Plea Agreement § IX.) 10 Furthermore, in his Plea Agreement, Defendant represented that no one had made 11 any promises to him to get him to plead guilty other than those in the written plea 12 agreement and those made in open court. (Id. § VI.B.) 13 To the extent Defendant argues that his attorney was generically “bad” and 14 failed to speak to family members, again that is belied by the record. Counsel 15 included letters of support at Defendant’s sentencing, including a letter from the 16 doctor treating Defendant’s mother suffering from Parkinson’s disease and a letter 17 from Defendant’s sister. (ECF No. 40-1.) Counsel did have some contact with 18 family members. In addition, in his Plea Agreement, Defendant stated he was 19 satisfied with the representation of his counsel. (Plea Agreement § XV.) He 20 apparently had no problems with a “bad” attorney at that point in time. 21 Equally important, Defendant fails to show that but for any errors on his 22 attorney’s part, he would not have pled guilty and would have insisted on going to 23 trial. Defendant had no clear defense to the charge. He was illegally in the United 24 States, and he had been previously deported. Had he gone to trial, he was facing a 25 sentencing guideline range of fifty-seven to seventy-one months in custody. Thus, 26 the thirty-seven months he received was quite beneficial for him. Like the defendant 27 in Silveira, it is simply not plausible that Defendant would have proceeded to trial in 1 fails to show there was a reasonable probability that, if his counsel had not been so 2 “bad,” that he would have gone to trial and faced this higher guideline range. 3 To the extent Defendant raises issues other than ineffective assistance of 4 counsel (e.g., the Judge was too harsh and he either had no criminal record or his 5 criminal record was a long time ago), he waived these issues as part of his Plea 6 Agreement. Both the Plea Agreement and the Plea Colloquy support that this waiver 7 of appeal was knowingly and voluntarily made. 8 III. Conclusion 9 Defendant fails to show that his counsel was ineffective. Defendant also fails 10 to show that he suffered any prejudice as a result of any claimed flaws in his 11 attorney’s performance. Finally, Defendant knowingly and voluntarily waived his 12 right to appeal any issues other than ineffective assistance of counsel. Hence, the 13 Motion filed pursuant to § 2255 (ECF No. 62) is DENIED. Further, the Clerk of 14 Court is ordered to close the civil companion case (No. 23-cv-01853-BAS). 15 * * * 16 CERTIFICATE OF APPEALABILITY 17 A district court must issue or deny a certificate of appealability (“COA”) when 18 it enters a final order adverse to the § 2255 movant. “A COA may issue ‘only if the 19 applicant has made a substantial showing of the denial of a constitutional right.’” 20 Buck v. Davis, 580 U.S. 100, 115 (2017) (quoting 28 U.S.C. § 2253(c)). “At the 21 COA stage, the only question is whether the applicant has shown that ‘jurists of 22 reason could disagree with the district court’s resolution of his constitutional claims 23 or that jurists could conclude the issues presented are adequate to deserve 24 encouragement to proceed further.’” Id. (quoting Miller El v. Cockrell, 537 U.S. 322, 25 327 (2003)). 26 Defendant’s § 2255 Motion does not meet this standard. His arguments are 27 without merit and his factual contentions are contradicted by the record before the 1 ||Court. Accordingly, the Court declines to issue a certificate of appealability in this 2 || action. 3 IT IS SO ORDERED. 4 5 || DATED: December 21, 2023 ( yt lig _< hy haar 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28