United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
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.
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.
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
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).
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.
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) .
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).
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.
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.
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.
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).
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.
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. ...