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Cordero-Torres v. United States

United States District Court, E.D. Virginia, Alexandria Division

August 11, 2017

RICARDO JOSE CORDERO-TORRES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil No. 1:16-cv-01606

          MEMORANDUM OPINION.

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Petitioner Ricardo Jose Cordero's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.

         On October 28, 2015, Petitioner pleaded guilty in the United States District Court for the Eastern District of Virginia to a one count criminal information charging him with attempted coercion and enticement of an individual, in violation of 18 U.S.C § 2422(a). Petitioner entered into a plea agreement with the United States on October 19, 2015. As part of the plea agreement, the United States agreed to dismiss the indictment of the § 2422(b) charge, allowing Petitioner to plead guilty to a single-count information charge of attempted coercion and enticement of an individual, in violation of 18 U.S.C § 2422(a). The plea agreement greatly benefitted Petitioner as an original § 2422(b) offense carries a mandatory minimum term of imprisonment of ten years with a maximum of life. 18 U.S.C. § 2422(b). Petitioner pleaded guilty to § 2422(a), a statute that does not impose a mandatory minimum imprisonment and carries a maximum of twenty years. 18 U.S.C. § 2242(a). In February 2015, the Court sentenced Petitioner to eighty-seven months of imprisonment and five years of supervised release.

         In December 2016, Petitioner filed the instant § 2255 motion, raising two main grounds for relief: (1) ineffective assistance of counsel, arguing that his attorney allegedly allowed him to plead guilty while Petitioner was under medication that rendered him incompetent; and (2) procedural competency, asserting that the Court erred by failing to inquire into his mental capacity and medications at the plea hearing. Petitioner does not request the Court set aside his guilty plea but instead requests he be "resentenced to the 'low end' of the guideline." Mem. In sup. of Pet'r's Mot. To Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255, at 7 (Dec.28, 2016)(Dkt. No.48-1)("Pet'r's Mem.").

         Under 28 U.S.C. § 2255, a petitioner may attack his sentence or conviction on the grounds that it was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; see also Hill v. United States, 368 U.S. 424, 426-27 (1962). The petitioner bears the burden of proving the grounds for relief by preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967).

         To prove a claim of ineffective assistance of counsel, Petitioner must show: (1) that his counsel's performance was objectively unreasonable; and (2) that his counsel's deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) . An ineffective assistance of counsel claim will fail if petitioner cannot make the required showing of either deficient performance or sufficient prejudice. Id. at 700.

         Objective reasonableness is "simply reasonableness under prevailing professional norms" regarding the representation. Id. at 688. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions with reasonable professional judgment. Id. at 689-90; United States v. Terry, 366 F.3d 312, 316-18 (4th Cir. 2004). Review of counsel's performance must be comprehensive and not narrowly limited to counsel's failings in determining whether the presumption of adequate assistance has been overcome, and courts are reluctant to second guess the tactics of trial lawyers. See Strickland, 466 U.S. at 691; Goodson v. United States, 564 F.2d 1071, 1072 (4th Cir. 1997) .

         Furthermore, a petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 669. In the context of a guilty plea, petitioner must "demonstrate 'a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Id; see also Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         Petitioner cannot satisfy his burden on any of his ineffective assistance of counsel claims. Petitioner's first claim is that his counsel allowed him to plead guilty while under medication that rendered him incompetent. To succeed on an ineffective assistance of counsel claim, Petitioner must show he was incompetent when he pleaded guilty to satisfy "Strickland's prejudice requirement." United States v. Basham, 789 F.3d 358, 383 (4th Cir. 2001). Without any evidence casting a bona fide doubt as to his competency, Petitioner cannot show his counsel provided deficient performance in failing to investigate the issue.

         The only objective evidence Petitioner offer is Dr. Morote's report discussing Petitioner's mental health issues and medication usage. Dr. Morote notes Petitioner's depression and anxiety along with the medications he uses to treat the illnesses, but these facts alone do not suggest incompetence. Dr. Morote also writes that Petitioner's medications were "effective in managing his anxiety and depression . . . that his stream of thought appeared organized and logical . . . and his insight was good and judgement appeared adequate." Id. at 7. These findings undermine Petitioner's claim of incompetency.

         Petitioner's statements at the plea hearing further suggest he was competent to plead guilty. Petitioner repeatedly confirmed his competence under oath in response to the Court's questions about his mental illness and medications. Petitioner assured the court he understood the consequences of pleading guilty and confirmed his medications made him "clearer" and "able to function clearly." Id. at 6:17-18. Such "[s]olemn declarations in open court carry a strong presumption of verity, " Blackledge v. Allison, 431 U.S. 63, 74 (1997), and bind Petitioner "[a]bsent clear and convincing evidence to the contrary." Walton v. Angelone, 321 F.3d at 462 (4th Cir. 2003). Petitioner's assertions of "diminished mental capacity" in his current papers are insufficient to rebut that presumption. United States v. Reid, 387 F.App'x 352, 354 (4th Cir. 2010); see also United States v. Cohen.

         During the plea hearing, the Court determined Petitioner was competent to plead guilty. Petitioner's attorney informed the Court that he did not have "any difficulty in communicating with [Petitioner] about this case and the legal papers, " and he thought that Petitioner "understood everything." Petitioner did not challenge this statement and confirmed he was "satisfied with [his] lawyer's services in this case." Id. at 10:3-4. Given that the Court and the Petitioner's attorney had the opportunity to observe Petitioner throughout the hearing, their final determinations of his mental competence are entitled to great weight. See United States v. Hebron, 442 F.App'x 887, 890 (4th Cir. 2011).

         Petitioner's only support for his claim of incompetence comes from his assertions on his § 2255 papers. Petitioner writes that he "suffered from mental clouding, was in a narcotized state, and was not in full possession of his mental faculties" when he pleaded guilty. However, such self-serving allegations are insufficient. Maloy v. United States, No.1:11 cr-00258-GBL, 2014 WL 3101820 (E.D. Va. July 7, 2014). Petitioner has failed to prove he was incompetent at the time he pleaded guilty and has therefore failed to prove his attorney provided deficient performance or that he was prejudiced as a result.

         Petitioner also claims that his attorney provided ineffective assistance because he failed to confer with Petitioner regarding his appellate options, sentencing options, and felt threatened into taking the plea agreement. ...


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