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United States v. Herrera-Vargas

August 3, 2007


The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge


On October 31, 2006, Petitioner Gilberto Herrera-Vargas ("Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed in case No. 04cr0018. [Doc. No. 35.] In response to Petitioner's Petition, the Court ordered Respondent, the United States of America, to show cause why the Petition should not be granted. [Doc. No. 36.] On March 5, 2007, the United States filed a Response to the Petition. [Doc. No. 39.] To date, Petitioner has not filed a traverse. This Court has reviewed the papers filed and determined that the issues presented are appropriate for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1) (2006). For the reasons set forth below, the Court DENIES the Petition for Writ of Habeas Corpus.


Factual Background

On December 8, 2003, Petitioner was stopped at an immigration checkpoint on State Highway 111 near Niland, California. (See Gov't Comp. at 2.) Petitioner told the Border Patrol Agent that he was a United States citizen. (See id.) The agent conducted an immigration and criminal record check and discovered that Petitioner had been previously deported from the United States and had a criminal record. (See id.)

Petitioner was read his Miranda rights and questioned. (See id. at 3.) Petitioner then disclosed to the agents that he was a citizen of Mexico with no lawful authority to be in the United States. Petitioner stated that he had entered the United States illegally by hiking through mountains near the Port of Entry in Tecate, California. (See id.)

Procedural History

Petitioner was subsequently indicted for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. [Doc. No. 5.] On February 20, 2004, Petitioner pled guilty to the charge without a plea agreement. [Doc. No. 11.]

At the disposition hearing, this Court confirmed that Petitioner was entering his plea freely and voluntarily, and that no representations had been made by counsel as to what sentence he would receive. (See Gov't Resp. Ex. 1; Rep.'s Tr. Disposition Hr'g.) Petitioner stated that he understood the proceedings and desired to enter a guilty plea. (See id. at 6-7.) Petitioner also confirmed he understood that the judge and not the attorneys would decide his sentence, and that no prediction or promise was made to him regarding the length of his sentence. (See id. at 12-14.) Petitioner's counsel stated that he did not make any promises or representations to Petitioner regarding his sentence. (See id. at 15.) This Court then accepted Petitioner's plea of guilty.

Based on Petitioner's criminal history and resulting offense level, the government recommended a sentencing range between seventy-seven and ninety-six months. (See id. at 13.) This range was the result of a sixteen-level increase due to Petitioner's prior aggravated felony, and a three-level decrease for acceptance of responsibility. (See id. at 13.) On May 4, 2004, Petitioner's counsel filed a motion for downward departure based on the following grounds: over-representation of Petitioner's criminal history, family ties and responsibility; coercion and duress; the totality of the circumstances; and cultural assimilation. (See Pet.'s Mot. Downward Departure at 2-5.)

On May 10, 2004, at the Sentencing Hearing, Petitioner's counsel again argued for a downward departure, focusing his argument on Petitioner's family ties and responsibility and cultural assimilation. (See Gov't Resp. Ex. 1; Rep.'s Tr. Sentencing Hr'g at 22-23.) Petitioner's counsel acknowledged Petitioner's past criminal history, but stated that Petitioner's family, who reside in the United States, are of the utmost importance to him, and concluded by stating that Petitioner would not return illegally to the United States. (See id. at 24-25.) Petitioner's counsel also provided letters of support from Petitioner's family and friends. (See Gov't Resp. Ex. 1; Rep.'s Tr. Sentencing Hr'g at 22-23.) The Court sentenced Petitioner to seventy-seven months confinement, the low-end of the applicable sentencing range. (See id. at 28.) Petitioner appealed his sentence, and the Ninth Circuit remanded the case to this Court for reconsideration and possibly re-sentencing in an Ameline hearing. [Doc. No. 30.] On April 14, 2006, this Court affirmed the sentence previously imposed. [Doc. No. 34.]

Presently before the Court is Petitioner's Petition to vacate, set aside, or correct the sentence imposed, under 28 U.S.C. § 2255. [Doc. No. 35.] Petitioner asserts that his counsel provided ineffective assistance. On March 5, 2007, the Government filed a response to the Petition. [Doc. No. 39.]

Legal Standard

28 U.S.C. § 2255

"A prisoner in custody under sentence of a court . . . claiming . . . that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (2000).

3 06cv0629 J (RBB)

Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prove that counsel acted ineffectively, a petitioner must meet a two-prong test. First, the petitioner must show that his counsel's performance fell below an objective standard of reasonableness. See id. at 687. A court's review of counsel's performance should be "highly deferential" becausethere is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. United States v. Ferreira-Almeda, 815 F.2d 1251, 1253 (9th Cir. 1986); see also Strickland, 466 U.S. at 690. Second, a petitioner must also show that his counsel's deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 693-94. The court need not address both the performance prong and the prejudice prong if the petitioner fails to make a sufficient showing of either. See id. at 700.


Ineffective Assistance of ...

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