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Cerritos v. United States

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

April 25, 2019

DOUGLAS DURAN CERRITOS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema, United States District Judge.

         Douglas 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 dismissed.

         I. BACKGROUND

         On June 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.

         Id. 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.

         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). 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).

         B. Denial of Due Process

         Cerritos' 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 citation omitted).

         As to 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)).

         Cerritos 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.[1] 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.

         C. Ineffective ...


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