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United States v. Zavala

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

September 12, 2017

UNITED STATES OF AMERICA,
v.
FRANCISCO LEOPOLDO ZAVALA, Movant.

          MEMORANDUM OPINION

          Leonie M. Brinkema, United States District Judge.

         Leopoldo Francisco Zavala ("Zavala" or "movant"), has filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion to Vacate") [Dkt. No. 41], in which he appears to raise five issues. First, he alleges that he is actually innocent of the charge to which he pleaded guilty and that the Court erred in calculating his sentence because he should have received a downward departure based on the weight of cocaine found in his possession. Further, he claims that he received ineffective assistance of his counsel, Assistant Federal Public Defender Shannon Quill, and that the outcome of his case would have been different but for the guilty plea. He contends that he was never advised of the possibility of receiving a mandatory minimum sentence; rather his lawyer lied about the ability of the Court to issue a sentence over 46 months. Finally, he argues that he was never advised of his constitutional right to appeal. For the reasons that follow, the Motion to Vacate will be summarily dismissed.[1]

         I. BACKGROUND

         On January 26, 2017, a grand jury returned an indictment charging Zavala with conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841 (Count 1); conspiracy to import cocaine in violation of 21 U.S.C. § 963 (Count 2); and possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841, Indictment [Dkt. No. 13], Jan. 26, 2017. On March 8, 2017, Zavala appeared with counsel and pleaded guilty under a written plea agreement only to Count 1. Id. ¶ 3. In exchange for that plea, the remaining charges were dismissed. Id. As part of the written plea agreement, Zavala also signed a Statement of Facts under the penalty of perjury in which he admitted that he conspired to unlawfully, knowingly and intentionally distribute five hundred grams or more of cocaine in the northern Virginia area and participated in four different sales of cocaine ranging in quantity from 28 to 56 grams to a confidential source ("C.S.") working with law enforcement. Statement of Facts ¶¶ 1, 3-6 [Dkt. No. 30]. In addition, he admitted he was found in possession of approximately 1 kilogram of cocaine with the intent to distribute it to the C.S. on December 3, 2016. Id. ¶7

         Zavala was sentenced on June 9, 2017 to 60 months of incarceration, with credit for time served followed by four years of supervised release among other penalties. [Dkt. No. 38]. This sentence was the statutory mandatory minimum for this offense. See 21 U.S.C. § 841 (b)(I)(B)(ii). No appeal was filed; however, Zavala timely filed his Motion to Vacate on August 31, 2017.

         II. DISCUSSION

         A. Standard of Review

         A motion to vacate under 28 U.S.C. § 2255 provides for collateral attack on a conviction or sentence when the conviction or sentence was imposed in violation of the United States Constitution or laws, when the court lacked jurisdiction to impose the sentence, when the sentence was in excess of the maximum authorized by law, or when the conviction or sentence is otherwise subject to a collateral attack. See 28 U.S.C. § 2255(a). To prevail on a § 2255 motion, a movant bears the burden of proving his grounds for collateral relief by a preponderance of the evidence. See Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).

         Relief under § 2255 is designed to correct for fundamental constitutional, jurisdictional, or other errors, and it is therefore reserved for situations in which failing to grant relief would be "inconsistent with the rudimentary demands of fair procedure or constitute[ ] a complete miscarriage of justice." United States v. Vonn, 535 U.S. 55, 64 (2002) (quoting United States v. Timmreck, 441 U.S. 780, 783 (1979)). A § 2255 motion "may not do service for an appeal, " and claims that have been waived are therefore procedurally defaulted unless the movant can show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 165-67(1982); however, an exception applies when a defendant brings a claim of constitutionally ineffective assistance of counsel. See United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).

         Under § 2255(b), a movant is to be granted an evidentiary hearing on his motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Summary dismissal of § 2255 allegations is "warranted only if a habeas petitioner's allegations when viewed against the record of the plea hearing are palpably incredible or patently frivolous or false." United States v. White, 366 F.3d 291, 297 (4th Cir. 2004) (quoting Blackledge v. Allison, 431 U.S. 63, 76 (1977)). Because a § 2255 motion "is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner, " that judge may take into account her "recollection of the events at issue" when deciding whether to summarily dismiss it. See Blackledge, 431 U.S. at 74 n.4.

         B. Actual Innocence

         Zavala asserts that he is not guilty of the crimes for which he was charged and "was coerced to plead." Motion to Vacate at 5. To the extent Zavala is claiming actual innocence, this claim is totally inconsistent with the Statement of Facts he signed, his sworn statement during his plea colloquy, and his statement to the probation office.

         In addition to signing the written Statement of Facts in which he admitted to being part of a conspiracy to unlawfully distribute five hundred grams or more of cocaine, to participating in four sales of cocaine to a C.S. working with law enforcement, and to being found in possession of one kilogram of cocaine, see Statement of Facts [Dkt. No. 30], during his plea colloquy, he admitted his guilt.

THE COURT: Now, do you agree that on July 19, 2016, you sold approximately 28 grams of cocaine to somebody who actually was working for law enforcement in Arlington, Virginia, for $1, 300?
THE DEFENDANT: Yes.
THE COURT: And how much were you paid to do that?
THE DEFENDANT: For the four occasions, I got $700.
THE COURT: That's the total amount you got?
THE DEFENDANT: Yes.
THE COURT: When you say four occasions, though, we have a date of August 20, 2016 in Woodbridge, Virginia; is that correct?
THE DEFENDANT: Yes.
THE COURT: All right. And then we have an October 15 and an October 29. So four total sales, correct?
THE DEFENDANT: Yes.
THE COURT: So if I understand it correctly then, each time, it was your friend who asked you to deliver cocaine to somebody who was acting as a government informant?
THE DEFENDANT: That's correct.
THE COURT: All right. And did you understand that that was against the law?
THE DEFENDANT: Yes.

         Plea Hr'g Tr. at 22:13-16; 23:5-22. Zavala also admitted his guilt a second time, before his plea was accepted.

THE COURT: Do you claim in any respect you're innocent of ...

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