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Martinez v. United States

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

February 26, 2018



          Leonie M. Brinkema, United States District Judge

         On May 26, 2016, Francisco E. Martinez ("Martinez" or "movant") was arraigned on an eleven count indictment which charged him with multiple drug and firearm charges. With the assistance of a Spanish language interpreter and under a written plea agreement, he pleaded guilty on August 5, 2016 to Count 5 which charged him with distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and Count 8 which charged him with possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Although movant and his counsel had agreed under a Fed. R. Crim. P. 11(c)(1)(B) plea agreement to a sentence between 120 months and 240 months incarceration, on October 28, 2016, Martinez was sentenced to 72 months incarceration, consisting of 12 months on Count 5 and followed by 60 months consecutive on Count 8. Throughout these proceedings Martinez was represented by Gary H. Smith ("Smith"), a Criminal Justice Act panel attorney who is proficient in Spanish.

         Martinez did not file an appeal of either his convictions or sentence, but on August 29, 2017 he timely filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence by a Person in Federal Custody ("Motion to Vacate') [Dkt. No. 46]. In that motion Martinez does not contest that he was guilty of the offenses for which he was convicted; rather, he argues that Smith provided ineffective assistance of counsel by not bringing certain factors to the Court's attention during the sentencing hearing, resulting in a sentence harsher than what other similar defendants have received, failed to provide a Spanish language interpreter so movant could understand his options, and failed to file an appeal after being instructed to do so.

         The United States of America has filed an Opposition, which includes an affidavit from Smith, who explains his training and expertise in the Spanish language, denies that he and the movant had difficulties in communication, and denies that movant asked him to file an appeal.

         In a Reply brief movant raises for the first time an argument that counsel failed to investigate the case and failed to file a motion to suppress. He repeats the argument that counsel failed to argue for a sentence reduction under 5K2, O and 5H1.6 and failed to file an appeal. Lastly, he requests that 1) his sentence be vacated; 2) an evidentiary hearing be held to determine whether he unambiguously advised his attorney to file an appeal; 3) he be allowed to file an appeal; and 4) that new counsel be appointed and fees be waived. For the reasons discussed below, the Motion to Vacate will be dismissed.

         I. DISCUSSION

         A. Standard of Review

         A motion under 28 U.S.C. § 2255 provides for collateral attack on a conviction or sentence imposed in violation of the United States Constitution or laws, where the court lacked jurisdiction to impose the sentence, where the sentence was in excess of the maximum authorized, or where the sentence or conviction is otherwise subject to collateral attack. To prevail, a movant bears the burden of proving his grounds for collateral relief by a preponderance of the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967).

         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 otherwise "inherently result[] in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         B. Ineffective Assistance of Counsel

         To establish ineffective assistance of counsel Martinez must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668 (1984), which requires a showing of both deficient performance by counsel and prejudice to the defendant resulting from that deficient performance. Because it "is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence" and because a wide range of legitimate defense strategies are possible in a given case, "scrutiny of counsel's performance must be highly deferential." Id. at 689. Moreover, a movant must make an additional showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694; see also Id. ("A reasonable probability is a probability sufficient to undermine confidence in the outcome.")

         For movants such as Martinez who pleaded guilty the burden is even higher - he "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hooper v. Garraahty, 845 F.2d 471, 475 (4th Cir. 1988); accord Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         In addition, statements the movant made during his Fed. R. Crim. P. 11 plea colloquy affirming his understanding of the plea agreement and satisfaction with counsel's performance are binding on the movant unless he produces "clear and convincing evidence to the contrary." Fields v.Att'v Gen, of Md., 956 F.2d 1290, 1299 (4th Cir. 1992).

         C. Martinez' ...

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