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United States v. Fernandez

United States District Court, D. Nebraska

June 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCO JIMENEZ FERNANDEZ, Defendant.

          MEMORANDUM AND ORDER

          ROBERT F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Marco Jimenez Fernandez's (“Fernandez”) pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Filing No. 75). For the reasons stated below, the motion is denied and no certificate of appealability will issue.

         I. BACKGROUND

         On May 5, 2017, Fernandez, with the assistance of an interpreter, pled guilty pursuant to a written plea agreement to possessing cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). He was represented by Paul J. Forney (“Forney”). In his plea agreement, Fernandez generally waived his rights to appeal and collateral review, except for claims that the charge failed to state a crime or that Fernandez received ineffective assistance of counsel. He also reserved the right to appeal the Court's denial of his motion to suppress the evidence seized from his vehicle and all statements he made following a traffic stop in Omaha, Nebraska.

         Before sentencing, Fernandez moved (Filing No. 60) for a downward variance based on the sentencing factors set forth in 18 U.S.C. § 3553(a). Noting he had “no criminal history, ” he argued he “was merely driving a vehicle that contained drugs” without knowledge of what he was carrying-though he suspected it was illegal. At Fernandez's sentencing hearing on August 18, 2017, the Court denied Fernandez's motion but considered his arguments in setting his sentence.

         Fernandez's presentence investigation report calculated an advisory United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range of 70 to 87 months imprisonment (level 27, category I). Fernandez was not eligible for safety-valve relief because he did not truthfully proffer to the government all information and evidence he had related to his offense. 18 U.S.C. § 3553(f)(5); U.S.S.G. §§ 2D1.1(b)(17), 5C1.2(a). The Court sentenced Fernandez to seventy months imprisonment-the bottom of his advisory Guidelines range-and three years of supervised release. At the close of the hearing, the Court reminded Fernandez he had waived most of his appeal rights but had preserved his right to appeal the denial of his suppression motion. The Court told Fernandez that if he wanted to appeal, he “should discuss that in more detail with” Forney. Fernandez did not appeal his conviction or sentence.

         On February 12, 2018, Fernandez timely moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. As grounds for relief, Fernandez asserts his legal counsel was “poor and ineffective” and never helped him. According to Fernandez, Forney never visited, pushed him to plead guilty, promised he would receive a sentence below seventy months, misled him about his eligibility for safety-valve relief, and never discussed his “appeal rights in any way.” Fernandez also asserts he did not fully understand the legal proceedings because of his “limited knowledge of English and the law.”

         On June 7, 2018, the Court conducted an evidentiary hearing regarding Fernandez's § 2255 Motion. Fernandez participated by telephone with the assistance of an interpreter. Forney was called as a government witness and appeared in person. Both testified in detail about Forney's representation of Fernandez. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (explaining that filing a § 2255 motion based on ineffective assistance of counsel implicitly waives the attorney-client privilege on matters implicated by the ineffective-assistance claim).

         II. DISCUSSION

         A. Standard of Review

         Under § 2255(a), a federal prisoner may seek post-conviction relief if his “sentence was imposed in violation of the Constitution or laws of the United States, or [if] the court was without jurisdiction to impose such sentence, or [if] the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Such relief “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

         B. Allegations of Ineffective Assistance of Counsel

         Fernandez's § 2255 motion turns on his claims of “poor and ineffective legal counsel.” The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 698 (1984). To prove ineffective assistance of counsel and obtain relief under § 2255, Fernandez must show his trial counsel's performance was both “deficient”-that is, “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment”-and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.

         Counsel's performance is deficient when it falls “below an objective standard of reasonableness” “under prevailing professional norms.” Id. at 688. The Court's review of counsel's performance is highly deferential. Id. at 689. The Court must make “every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. In evaluating counsel's performance, ...


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