United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge.
Duran Cerritos ("Cerritos" or "movant")
has filed a prose Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct a Federal Sentence by a
Person in Federal Custody ("Motion to Vacate")
[Dkt. No. 84], in which he alleges that the Court deprived
him of due process by failing sua sponte to order an
evaluation of his competence to stand trial and that his
counsel was constitutionally ineffective for failing to have
him evaluated by a psychiatrist. Both arguments are meritless
and for the reasons that follow the Motion to Vacate will be
25, 2015, a grand jury returned a superseding indictment
charging Cerritos with two counts of murder in aid of
racketeering, in violation of 18 U.S.C. §§
1959(a)(1) and 2 [Dkt. No. 1]. One count was dismissed [Dkt.
No. 23], and Cerritos proceeded to trial by jury on September
19, 2016 on the remaining count [Dkt. No. 46]. After a
four-day trial, the jury found Cerritos guilty of one count
of murder in aid of racketeering [Dkt. No. 50]. At trial, the
government established that Cerritos, who was 18 years old
and a member of the Northern Virginia clique of the MS-13
gang, ordered the murder of Gerson Adoni Martinez Aguilar, a
fellow gang member who had disobeyed gang rules. On December
16, 2016, Cerritos was sentenced to life imprisonment [Dkt.
No. 59]. Cerritos appealed his conviction and sentence to the
Fourth Circuit, arguing that there was insufficient evidence
to prove that he was a member of a criminal enterprise
engaged in interstate commerce or that he knowingly
participated in the murder and that his life sentence
violated the Eighth Amendment. See United States
v. Cerritos, 706 Fed.Appx. 113, 114 (4th Cir. 2017). The
Fourth Circuit affirmed his conviction and sentence.
at 115. On July 17, 2018, Cerritos timely filed this Motion
to Vacate, to which the government responded [Dkt. No. 89].
The Court granted Cerritos' Motion for Extension of Time
to File Reply, giving him until November 15, 2018 to reply
[Dkt. No. 93]; however, as of April 25, 2019, he has failed
to file anything further.
Standard of Review
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).
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). There is an exception to this rule 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." The district judge has
discretion to deny without a hearing § 2255 motions
which state "only legal conclusions with no supporting
factual allegations." See Raines v. United
States, 423 F.2d 526, 531 (4th Cir. 1970) (internal
quotation marks and citations omitted).
Denial of Due Process
argument that the Court deprived him of due process by
failing sua sponte to order a psychiatric evaluation
or competency hearing is meritless. A trial court shall order
such an evaluation or competency hearing on its own motion
"if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or
defect rendering him mentally incompetent." 18 U.S.C.
§ 4241(a). To be entitled to relief because the trial
court failed to order such an evaluation or a competency
hearing, Cerritos must establish that the "trial court
ignored facts raising a bona fide doubt regarding his
competency to stand trial." United States v.
MoussaouL 591 F.3d 263, 291 (4th Cir. 2010) (internal
quotation marks and citation omitted). In making this
determination, the district court should examine any history
of irrational behavior by the defendant, his demeanor
throughout the trial, and prior medical opinions on
competency. Id. (internal quotation marks and
the issue of sanity at the time of the offense, the Supreme
Court has held that "when a defendant has made a
preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial, the
Constitution requires that a State provide access to a
psychiatrist's assistance on the issue if the defendant
cannot otherwise afford one." Ake v. Oklahoma,
470 U.S. 68, 74 (1985). Yet Ake "does not mandate that
the trial court be omniscient, nor does it require the trial
court to divine without direction what expert the defendant
wishes, nor why such an expert is needed." Page v.
Lee, 337 F.3d 411, 416 (4th Cir. 2003). It is "not
unreasonable to conclude" that a defendant "must
show the trial court that there exists a reasonable
probability both that an expert would be of assistance to the
defense and that denial of expert assistance would result in
a fundamentally unfair trial." Id. (quoting
Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987)).
has failed to establish any basis upon which the trial court
could have suspected that his sanity was in doubt, either at
the time of the offense or at trial. This present Motion to
Vacate is the first time Cerritos has raised the issue of any
mental health problem, and he provides no facts to support
the theory that he was incompetent to stand trial or should
have been found not guilty by reason of insanity. The trial
record does not disclose Cerritos engaging in any erratic
behavior, and he proffers none in his Motion to Vacate,
pointing only to his young age and the criminal conduct at
issue. In a colloquy with the Court during the trial, he
responded appropriately to questions about his decision not
to testify and during the sentencing hearing he articulated
understanding the conditions of his supervised release [Dkt.
Nos. 72 at 9-11 and 78 at 748-49]. Throughout the trial and
sentencing phase of this case, Cerritos "acted in a
manner exhibiting competence." Beck v.
Angelone, 261 F.3d 377, 388 (4th Cir. 2001) (internal
quotation marks and citation omitted). Moreover, during the
presentence investigation, Cerritos reported to the Probation
Office "no history of any serious or chronic medical
conditions or illness, and no prior hospitalizations or
surgeries" and "no history of psychological or
psychiatric treatment" and the Probation Office found
"no documented evidence to suggest otherwise" [Dkt.
No. 56 ¶¶ 64-65]. As Cerritos "did nothing to
lead his counsel or the [ ] trial court to question his
competency," Beck. 261 F.3d at 388, the trial
court was not obligated sua sponte to order either a
psychiatric evaluation or conduct a competency hearing.