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United States v. Hernandez

United States District Court, D. Nebraska

October 27, 2016




         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 65) filed by the defendant, Francisco Samuel Nava Hernandez. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.


         The defendant was charged with one count of possessing over 50 grams of a mixture or substance containing methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Filing 17. He petitioned to enter a guilty plea; the petition set forth his rights in English and Spanish. Filing 30. And the interpreter who interpreted between the defendant and his counsel certified that he had translated the indictment, petition, and Sentencing Guidelines to the defendant. Filing 30 at 16-17. At his change of plea hearing, the defendant was again advised of his rights in a detailed colloquy pursuant to Fed. R. Crim. P. 11(b), again with the assistance of an interpreter. See filing 34.

         Through counsel, the defendant moved for a variance from the Sentencing Guidelines based on the fact that in a state DUI proceeding, where he had been represented by different counsel, he had been poorly advised to plead guilty to the DUI charge. See, filing 37; filing 39. The defendant contended that the resulting two criminal history points increased his Guidelines range and cost him an opportunity to qualify for safety valve relief. Filing 39 at 1-4. The Court explained that "the federal court is not a place to collaterally attack a state court plea, " but that the Court would consider the deficiency in the state court proceeding under 18 U.S.C. § 3553(a). Filing 60 at 23. Applying the § 3553(a) factors, the Court imposed a Guidelines sentence of 97 months' imprisonment. Filing 50 at 2; filing 51 at 1. The Court asked whether either party wanted any further elaboration of the reason for the sentence, and both parties (through counsel) declined. Filing 60 at 25.

         The defendant appealed through counsel, arguing in part that the Court erred because it did not adequately explain its reasons for imposing the sentence and did not address his arguments supporting his variance motion. See United States v. Nava Hernandez, No. 15-2953, 2016 WL 3553287, at *1 (8th Cir. June 30, 2016). The Court of Appeals rejected those arguments and affirmed the defendant's conviction and sentence. See id.


         The defendant presents three postconviction claims: (1) ineffective assistance of counsel with respect to his state DUI conviction, (2) the Court's alleged failure to consider mitigating factors, and (3) waiving his rights without a full understanding of the waiver. The Court will address each claim in turn.


         The defendant claims that his counsel was constitutionally ineffective. To establish a claim of ineffective assistance of counsel, the defendant must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance can be shown by demonstrating that counsel's performance fell below an objective standard of reasonableness. Id. at 688. However, the Court's scrutiny of counsel's performance is highly deferential, because the Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.

         To satisfy the prejudice prong of Strickland, the defendant must show that counsel's error actually had an adverse effect on the defense. Gregg v. United States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant must do more than show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A "reasonable probability" is less than "more likely than not, " but it is more than a possibility; it must be sufficient to undermine confidence in the outcome of the case. Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008).

         In the context of a challenge to a guilty plea, the deficient performance and prejudice are demonstrated if the defendant can prove that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill ...

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