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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`STEVEN MICHAEL HERRERA,#71728-080 §
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`VS.
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`§
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`UNITED STATES OF AMERICA
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`§
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`CIVIL ACTION NO. 4:13CV228
` CRIMINAL ACTION NO. 4:11CR45(1)
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`REPORT AND RECOMMENDATION
`OF UNITED STATES MAGISTRATE JUDGE
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`Movant, a federal prisoner, filed a pro se motion to vacate, set aside, or correct sentence
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`pursuant to 28 U.S.C. § 2255. The motion was referred to the undersigned United States Magistrate
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`Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case
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`pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the
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`Assignment of Duties to the United States Magistrate Judge.
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`I. BACKGROUND
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`On March 20, 2007, Movant was convicted of theft of $20,00 - $100,000 in the 204th Judicial
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`District Court of Dallas, Texas. He was sentenced to ten years’ confinement, which was probated
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`for ten years. On May 7, 2009, a motion to revoke his state probation was filed, alleging four
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`violations, including the commission of two new offenses – unauthorized use of a motor vehicle and
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`failure to identify.
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`On February 16, 2011, Movant was charged by a grand jury in the underlying criminal case.
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`On May 5, 2011, pursuant to a plea agreement, Movant pleaded guilty to mail fraud and wire fraud,
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`in violation of 18 U.S.C. §§ 1341, 1343, respectively. Prior to sentencing, the Presentence Report
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`was prepared. Movant’s offense level was determined to be 14 with no points added as relevant
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`conduct for any of his state convictions. One criminal history point was added for Movant’s
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`conviction for the unauthorized use of a motor vehicle. The court sentenced Movant to 33 months’
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`imprisonment on each count, to be served concurrently. He did not file a notice of appeal. However,
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`on November 19, 2012, Movant filed a motion to amend or correct sentence. In that motion, Movant
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`argued that the court should amend his sentence to run concurrently with his state sentence for theft
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`in the third degree, claiming that it was taken into account during the calculation of federal
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`sentencing guideline range as part of his criminal history.
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`In Movant’s § 2255 motion, he argues he is entitled to relief because counsel was ineffective
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`for failing to raise the issue of his federal sentence running concurrently with his state sentence at
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`the federal sentencing. He also claims counsel was ineffective for failing to make “clarifications to
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`Defendant’s sentence pursuant to Rule 35(a).” The Government filed a Response, asserting that
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`Movant’s claims are barred by the waiver in his plea agreement. Movant filed a Reply.
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`II. § 2255 PROCEEDINGS
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`As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
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`from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
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`§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction.
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`The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be
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`drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the
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`other.” United States v. Pierce, 959 F.2d 1297, 1300-01 (5th Cir. 1992). A collateral attack is
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`limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937
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`F.2d 228, 232 (5th Cir. 1991).
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`III. MOVANT’S GUILTY PLEA
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`Movant pleaded guilty pursuant to a written plea agreement. He also pleaded guilty at his
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`change of plea hearing, and affirmed his guilt in various other documents.
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`PLEA AGREEMENT
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`Movant signed a plea agreement containing the following waiver provision:
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`Except as otherwise provided herein, the defendant expressly waives the right to
`appeal the conviction, sentence, fine and/or order of restitution or forfeiture in this
`case on all grounds. The defendant further agrees not to contest the conviction,
`sentence, fine and/or order of restitution or forfeiture in any post-conviction
`proceeding, including, but not limited to a proceeding under 28 U.S.C. § 2255. The
`defendant, however, reserves the right to appeal the following: (a) any punishment
`imposed in excess of the statutory maximum and (b) a claim of ineffective assistance
`of counsel that affects the validity of the waiver or plea itself.
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`See Cause No. 4:11cr45 (dkt #20).
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`The Fifth Circuit has upheld the informed and voluntary waiver of post-conviction relief in
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`United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d
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`463, 465 (5th Cir. 1995), the Fifth Circuit held that a waiver may not be enforced against a § 2255
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`movant who claims that ineffective assistance of counsel rendered that waiver unknowing or
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`involuntary. In United States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an
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`ineffective assistance of counsel claim raised in a § 2255 proceeding survives a waiver only when
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`the claimed assistance directly affected the validity of that waiver or the plea itself. More recently,
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`the Fifth Circuit noted that it has upheld § 2255 waivers except for when there is an ineffective
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`assistance of counsel claim that affects the validity of that waiver or the plea itself or when the
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`sentence exceeds the statutory maximum. United States v. Hollins, 97 F. App’x 477, 479 (5th Cir.
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`2004).
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`In Movant’s plea agreement, Movant states:
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`I have read or had read to me this plea agreement and have carefully reviewed every
`part of it with my attorney. I fully understand it and voluntarily agree to it.
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`The plea agreement also states:
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`The defendant has thoroughly reviewed all legal and factual aspects of this case with
`defense counsel and is fully satisfied with defense counsel’s legal representation.
`The defendant has received satisfactory explanations from defense counsel
`concerning each paragraph of this Agreement, each of the defendant’s rights affected
`thereby, and the alternatives to entering a guilty plea. After conferring with counsel,
`the defendant concedes guilt and has concluded that it is in the defendant’s best
`interest to enter this Agreement rather than proceeding to trial.
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`Finally, Movant states in his plea agreement that the “plea of guilty is freely and voluntarily made
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`and is not the result of force, threats, or promises other than those set forth in this Agreement.”
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`Consequently, Movant’s signed plea agreement shows that his guilty plea was knowingly and
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`voluntarily made.
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`PLEA HEARING
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`At Movant’s change of plea hearing, held on May 19, 2011, Movant states:
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`He understood the Consent form and discussed it fully with counsel;
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`He was satisfied with his counsel and his legal representation;
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`He understood the charges against him;
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`He understood the elements of the crime charged;
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`He understood the sentencing maximum was twenty years and that he is forfeiting
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`a 2002 Maserati vehicle and cash proceeds greater than $100,000.00;
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`He discussed the sentencing guidelines with counsel;
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`He understood how the sentencing guidelines may apply to his case;
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`8.
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`9.
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`10.
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`11.
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`He understood that the court would be unable to determine his sentencing guideline
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`range until after the presentence report had been completed;
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`He understood that the sentence imposed could be different from any estimate his
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`counsel, the Government, or the probation office may have given him;
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`There were no promises, force, or threats by anyone to induce him to plead guilty;
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`He understood that if the sentence is more severe than what he expected, he is still
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`bound by his guilty plea; and
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`12.
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`His guilty plea was freely and voluntarily given.
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`Formal declarations in open court carry a strong presumption of truth. Blackledge v. Allison, 431
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`U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed.2d 136 (1977).
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`At the plea hearing, Movant affirmed that everything in the Factual Statement was true and
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`correct. The court admonished Movant as to the charges against him and further explained the rights
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`Movant was giving up by pleading guilty to a felony. Movant states that:
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`1.
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`2.
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`3.
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`He understood the rights that he was waiving;
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`There were no promises made to him leading him to plead guilty; and
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`He was pleading guilty voluntarily, of his own free will, because he is guilty of the
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`crime charged.
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`Formal declarations in open court carry a strong presumption of truth. Allison, 431 U.S. at 74, 97
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`S. Ct. at 1629. Although a defendant’s attestation of voluntariness at the time of the plea is not an
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`absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz,
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`733 F.2d 371, 373-74 (5th Cir. 1984). Movant’s plea hearing shows that his plea was knowing and
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`voluntary.
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`CONSENT TO ADMINISTRATION OF GUILTY PLEA
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`Additionally, on May 19, 2011, Movant signed a Consent to Administration of Guilty Plea.
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`In the Consent, Movant states that
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`10.
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`11.
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`12.
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`He understood his trial rights, and that by pleading guilty, he knew he was giving up
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`those rights – except for the right to counsel;
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`He understood that the court will consult the Sentencing Guidelines in assessing a
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`sentence;
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`He understood that the court, however, is not bound by the Guidelines;
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`He understood that, although he may have been given a possible range of
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`punishment, it is only an estimate;
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`He understood that his punishment could be increased based on various factors such
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`as prior criminal history, his role or participation in the crime, the quantity of
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`contraband attributed to him, or the use of weapons;
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`He was aware that the court is not bound by any agreements between himself and the
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`Government;
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`He understood that only the United States District Judge will determine his sentence;
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`He was making his plea of guilty of his own free will;
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`He was not induced or forced to plead guilty;
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`No promises or threats had been made to induce him to plead guilty;
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`He pleaded guilty because he was guilty;
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`He fully understood the charges, including the statutory minimum and maximum
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`penalties, as well as terms related to supervised release, special assessments,
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`forfeiture, and restitution;
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`13.
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`He fully understood the ramifications of pleading guilty and had no reservations or
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`questions concerning it;
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`14.
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`He was not under the influence of any substances or medications and he was fully
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`competent to enter a plea before the court;
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`15.
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`He knew that, before pleading guilty, if he had any questions, he could freely consult
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`with his attorney;
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`He was satisfied with his attorney’s representation;
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`He signed the Factual Statement;
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`The Factual Statement is true and correct;
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`He reviewed the Factual Statement and there were no material errors;
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`He understood that his statements were made under the penalty of perjury.
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`16.
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`17.
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`18.
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`19.
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`20.
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`Movant’s Consent shows that his guilty plea was knowingly and voluntarily made.
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`FACTUAL STATEMENT
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`The Factual Statement reflected that, after falsely telling individual investors they would be
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`investing in a legitimate oil and gas venture, Movant caused several investors to send checks by
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`Federal Express or funds by wire transfer to him. Movant deposited the checks into an account held
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`by him. Movant fraudulently used the proceeds from the checks and wire transfers to purchase a
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`2002 Maserati Cambiocorsa. Losses from the mail and wire fraud were totaled at “at least
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`$125,825.00.” Movant also admitted to attempting to impede an official law enforcement
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`investigation by concealing information about the true sources of funds used to purchase the
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`Maserati. He conceded that he committed these offenses while on probation with Dallas County,
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`Texas, for theft over $20,000 – a third-degree felony. Movant affirmed that the facts were true and
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`correct.
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`FINDINGS OF FACT
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`Finally, on May 25, 2011, the court entered Findings of Facts. Based on the hearing in which
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`Movant pleaded guilty, the court found that:
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`1.
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`2.
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`3.
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`4.
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`5.
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`Movant knowingly and voluntarily consented to the administration of the Guilty Plea
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`and Allocution;
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`Movant and the Government entered into a plea agreement that has been filed and
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`disclosed in open court pursuant to Fed. R. Crim. P. 11( c)(2).
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`Movant was fully competent and capable of entering an informed plea;
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`Movant was aware of the nature of the charges and the consequences of the plea;
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`Movant’s plea of guilty was knowingly and voluntarily made, supported by an
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`independent basis in fact containing each of the essential elements of the offense.
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`The Findings of Facts show that Movant’s guilty plea was knowingly or voluntarily made.
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`In sum, the court found that Movant, after consultation with counsel, knowingly and
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`voluntarily pleaded guilty to the charges. It also found that Movant was fully competent and capable
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`of entering an informed plea. It found that he was aware of the nature of the charges and the
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`consequences of the plea, and that his guilty plea is a knowing and voluntary plea supported by an
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`independent basis in fact containing each of the essential elements of the offenses.
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`The District Court accepted Movant’s guilty plea. In cases where the record establishes that
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`the defendant understood the nature of the charge against him and the direct consequences of his act,
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`the rudimentary demands of a fair proceeding and a knowing, voluntary plea are satisfied. Wright
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`v. United States, 624 F.2d 557, 561 (5th Cir. 1980). Movant fails to show that he did not understand
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`the nature of a constitutional protection that he was waiving or that he had “such an incomplete
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`understanding of the charges against him that this plea cannot stand as an admission of guilt.” James
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`v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). The Fifth Circuit has held that a defendant’s testimony
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`at the plea colloquy that no one attempted in any way to force him to plead guilty carries a strong
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`presumption of verity. United States v. Abreo, 30 F.3d 29, 31 (5th Cir. 1994). If a defendant
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`understands the nature of the charges against him and the consequences of his plea, yet voluntarily
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`chooses to plead guilty, the plea must be upheld on federal review. Diaz v. Martin, 718 F.2d 1372,
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`1376-77 (5th Cir. 1983).
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`IV. CONCLUSION
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`The court concludes that Movant’s guilty plea was knowing and voluntary after examining
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`his Plea Agreement, the plea hearing transcript, the Consent, the Factual Statement, and Findings
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`of Fact. Thus, the guilty plea must be upheld on federal review. Id. Movant’s two issues - that
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`counsel was ineffective for failing to raise the issue of his federal sentence running concurrently with
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`his state sentence at federal sentencing and for failing to make clarifications to Defendant’s sentence
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`pursuant to Rule 35(a) – are not issues reserved for review in his plea agreement. Movant does not
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`allege that his sentence exceeded the statutory maximum. Nor does he allege an ineffective
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`assistance of counsel issue that affects the validity of the waiver or the plea itself. Thus, he does not
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`invoke either of the two very narrow exceptions to his waiver. “A guilty plea, since it admits all
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`the elements of a formal criminal charge, waives all non-jurisdictional defects in the proceedings
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`against a defendant.” Barrientos v. United States, 668 F.2d 838, 842 (5th Cir. 1982). Movant
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`claimed that he understood the charges and the minimum and maximum penalties, and that his plea
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`of guilty was knowingly and voluntarily made. He fails to show that he did not understand the nature
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`of a constitutional protection he was waiving or that he had “such an incomplete understanding of
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`the charges against him that this plea cannot stand as an admission of guilt.” James, 56 F.3d at 666.
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`For these reasons, the motion should be denied and the case dismissed.
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`V. CERTIFICATE OF APPEALABILITY
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`An appeal may not be taken to the court of appeals from a final order in a proceeding under
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`§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
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`2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
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`that the court, nonetheless, address whether Movant would be entitled to a certificate of
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`appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
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`sponte rule on a certificate of appealability because “the district court that denies a petitioner relief
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`is in the best position to determine whether the petitioner has made a substantial showing of a denial
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`of a constitutional right on the issues before the court. Further briefing and argument on the very
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`issues the court has just ruled on would be repetitious.”).
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`A certificate of appealability may issue only if a movant has made a substantial showing of
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`the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
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`requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
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`v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
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`a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
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`demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
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`claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
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`district court denies a habeas petition on procedural grounds without reaching the petitioner’s
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`underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
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`of reason would find it debatable whether the petition states a valid claim of the denial of a
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`constitutional right and that jurists of reason would find it debatable whether the district court was
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`correct in its procedural ruling.” Id.
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`In this case, it is respectfully recommended that reasonable jurists could not debate the denial
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`of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
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`are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
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`123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
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`Accordingly, it is respectfully recommended that the court find that Movant is not entitled to a
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`certificate of appealability.
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`VI. RECOMMENDATION
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`It is recommended that Movant’s motion for relief under 28 U.S.C. § 2255 be denied and the
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`case dismissed with prejudice. It is further recommended that a certificate of appealability be denied.
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`Within fourteen (14) days after service of the magistrate judge’s report, any party must serve
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`and file specific written objections to the findings and recommendations of the magistrate judge.
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`28 U.S.C. § 636(b)(1)( C). In order to be specific, an objection must identify the specific finding or
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`recommendation to which objection is made, state the basis for the objection, and specify the place
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`in the magistrate judge’s report and recommendation where the disputed determination is found. An
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`objection that merely incorporates by reference or refers to the briefing before the magistrate judge
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`is not specific.
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`Failure to file specific, written objections will bar the party from appealing the unobjected-to
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`factual findings and legal conclusions of the magistrate judge that are accepted by the district court,
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`except upon grounds of plain error, provided that the party has been served with notice that such
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`consequences will result from a failure to object See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
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`1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)
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`(extending the time to file objections from ten to fourteen days).
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