United States District Court, E.D. Virginia, Alexandria Division
FRANCISCO E. MARTINEZ, Movant,
UNITED STATES OF AMERICA, Respondent.
M. Brinkema, United States District Judge
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.
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.
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.
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
Standard of Review
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
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)).
Ineffective Assistance of Counsel
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.")
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).
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.