Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER Civil Action No. 02-cv-01969-WDM (Criminal Action No. 01-CR-197-WM) UNITED STATES OF AMERICA, Plaintiff-Respondent, v. VINCENTE PEREZ BARAJAS, Defendant-Movant.

ORDER ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 Miller, J. This case is before me on the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed by defendant-movant Vincente Perez Barajas (Barajas). The government concedes that the motion was timely filed but contends Barajas is not entitled to relief. I have reviewed the parties' filings and conclude, for the reasons that follow, that the motion should be denied. Background Barajas was charged by information with one court of possession with intent to distribute five hundred grams or more of a substance containing methamphetamine and aiding and abetting, violations of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. He pleaded guilty and was sentenced to seventy months' imprisonment and five years' supervised release. He did not appeal his conviction or sentence. Barajas filed this § 2255 motion within the one-year limitations period set forth in the

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statute. § 2255. In his § 2255 motion, Barajas brings the following claims for relief:1 (1) a request for reconsideration of the denial of his request for a two-level reduction in guideline level for minor participation; (2) failure to depart downward on the ground that Barajas, as a deportable alien, faced a denial of pretrial release and would not be eligible for minimum security confinement; (3) violation of equal protection due to his status as a deportable alien; (4) a violation of double jeopardy; and (5) ineffective assistance of counsel. Standard of Review 28 U.S.C. § 2255 permits a federal prisoner to file a motion to vacate, set aside, or correct his sentence on " ground that the sentence was imposed in violation of the the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" Discussion2 1. Reconsideration of Sentencing To the extent Barajas' arguments may be construed as merely a motion for s

In his § 2255 motion, Barajas checked the following grounds for relief: (1) his conviction was obtained by guilty plea that was unlawfully induced, involuntary, or made without understanding of the nature of the charge or the consequences of the plea; (2) his conviction was obtained in violation of the protection against double jeopardy; and (3) he was denied effective assistance of counsel. § 2255 Motion, p. 4. I have drawn the list of claims set forth in the body of the order from the motion, as interpreted by the government in its response.
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Barajas did not file a reply to the government' response to his § 2255 s 2

motion.

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reconsideration of the denial of a two-level reduction in offense level for a minor participant role, section 2255 does not authorize such relief expect on the grounds provided in the statute. Barajas does not point to a constitutional error in the denial, nor does he assert that the denial resulted in an invalid sentence within the context of section 2255. Even if this issue were properly before me, however, I have reviewed the transcript of the sentencing hearing and conclude that I would not reach a different result regarding the minor participant issue were it before me again.3 2. Downward Departure/Ineffective Assistance of Counsel Barajas contends that his attorney should have moved for a downward departure on the ground that he would not be eligible for prerelease programs or minimum security confinement because he was a deportable alien.4 In a separate argument, he argues he received ineffective assistance of counsel because his attorney did not disclose and explain all available information and options, including the possibility of a downward departure based on his alien status. I will treat these arguments together. In its response, the government concedes that Barajas' attorney did not discuss s the issue of a possible downward departure on this basis with her client. Response at 7, n.1. It asserts, however, that this omission was not a deprivation of the right to effective

I note here that, as a result of his plea agreement, Barajas received a much lower sentence than he would otherwise have received. Pleading guilty allowed him to qualify for the " safety valve"of U.S.S.G. § 5C1.2, permitting me to sentence him below the ten-year minimum sentence called for by 21 U.S.C. § 841(b)(1)(A). Barajas also appears to argue that he was entitled to a downward departure because he agreed to stipulate to deportation and did not take a direct appeal. 3
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counsel under the Sixth Amendment. My resolution of Barajas' ineffective assistance of counsel claim is governed by the s familiar, two-part standard set froth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on his claim, Barajas must first show " that counsel' performance was deficient," s i.e., " counsel made errors so serious that counsel was not functioning as the ` that counsel' guaranteed the defendant by the Sixth Amendment."Strickland, 466 U.S. at 687. Barajas must identify specific acts or omissions that he alleges were not " result of reasonable the professional judgment." Id. at 690. Second, Barajas must demonstrate that counsel' s " deficient performance prejudiced the defense."Id. at 687. This second element requires a showing " counsel' errors were so serious as to deprive the defendant of a fair trial, that s a trial whose result is reliable."Id. Although not insurmountable, the Strickland standard is " highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Addressing the first element, my inquiry must be whether, considering all the circumstances as of the time of the conduct, " counsel' representation fell below an s objective standard of reasonableness."Strickland, 466 U.S. at 688-90. I review counsel' s performance with great deference, indulging " strong presumption that counsel' conduct a s falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ` might be considered sound trial strategy.' at 689 (quotation omitted). See id. at 690 "Id. (" court should recognize that counsel is strongly presumed to have rendered adequate the assistance and made all significant decisions in the exercise of reasonable professional judgment" see also Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997) (" ); Tactical and 4

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strategical decisions of counsel ` based on informed and reasoned practical judgment' if will not be second-guessed" (quoting McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989)). ) Even if Barajas is able to show that his attorneys' performance was constitutionally deficient, he is not entitled to relief under section 2255 unless he can affirmatively prove the deficiencies created prejudice. Strickland, 466 U.S. at 691-93. The Supreme Court summarized this element of the Strickland test as requiring that the defendant show " there is a reasonable probability that, but for counsel' unprofessional errors, the result of the s proceeding would have been different." Id. at 694. The Court viewed a reasonable probability as " probability sufficient to undermine confidence in the outcome." Id. a In applying this test, my " ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696; see also id. at 686 (" The benchmark for judging any claim of ineffectiveness must be whether counsel' s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result" ). The record before me reveals that I was aware of Barajas' alien status and of the s possibility that he would be deported. There is no indication that I believed I lacked authority to depart downward on that ground and so did not sua sponte raise the issue myself. United States v. Nelson, 54 F.3d 1540, 15 (10th Cir. 1995) (discretionary refusal to depart downward is not reviewable on appeal " unless it appears from the record the sentencing court erroneously believed the Guidelines did not permit a downward departure" Cf. United States v. Garcia, 1 F.3d 1098, 1099 (10th Cir. 1993) (addressing ). sua sponte departure). 5

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Further, there is no evidence of record suggesting that the Attorney General either recommended or gave his consent to a downward departure in this case. An unpublished Tenth Circuit opinion issued between the time of his change of plea hearing and his sentencing hearing held that a downward departure based on possible deportation, although not forbidden, may not be granted unless sanctioned by the Attorney General in the specific case. United States v. Gomez-Sotelo, 18 Fed. Appx. 690, *691-92 (10th Cir. 2001). In the absence of such evidence, Barajas' attorney was not constitutionally s deficient for failing to seek a downward departure.5 3. Denial of Equal Protection As a continuation of the previous issue of the consequences of his status as a deportable alien, Barajas argues that the immigration detainer lodged against him by the Bureau of Prison system constitutes a violation of equal protection. He reiterates his position that I could have departed downward at sentencing because the Guidelines do not expressly account for, or make benefits available to, deportable aliens. To the extent that Barajas is challenging the conditions of his confinement, i.e., his ineligibility for participation in prerelease programs or the like, I lack jurisdiction to consider his claim. This argument concerns the execution rather than the imposition of his sentence and should have been brought pursuant to 28 U.S.C. § 2241 in the district court where he

Even if I were to find that counsel should have raised the issue, I could not conclude that Barajas was prejudiced by the omission within the meaning of Strickland. He received a considerable reduction in sentence from the statutory minimum as a result of his plea agreement, and it is pure speculation at this time to believe that the government would have supported or acceded to a further departure based on the not-unusual factor of his status as a deportable alien. 6

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was confined at the time of filing his motion. To the extent Barajas is challenging his sentence because of the lack of downward departure based on his deportable alien status, I have jurisdiction under section 2255. This claim is unavailing, however. " [T]he federal government can treat aliens differently from citizens so long as the difference in treatment has a rational basis." United States v. Tamayo, 162 Fed. Appx. 813, *816 (10th Cir. 2006) (quoting Soskin v. Reinertson, 353 F.3d 1242, 1254 (10th Cir. 2004); alteration in quoted material). The Tenth Circuit has agreed with other courts that denying deportable aliens the opportunity to participate in pre-release programs does not violate equal protection because there is a rational basis for such treatment. Those programs are geared toward rehabilitating prisoners who will re-enter society after their release; this purpose does not exist in the cases of aliens who will be deported after the term of their sentence.6 Id. Because there is a rational basis for treating deportable aliens differently than citizens for purposes of eligibility for pretrial release programs and other conditions of confinement, the Sentencing Commission' omission of a sentencing benefit for deportable s aliens does not implicate equal protection. 4. Double Jeopardy Barajas also argues that his attorney failed to explain that the " sentencing

Likewise, I conclude there is a rational basis for assigning deportable aliens to higher-security prisons than their citizen counterparts. Such aliens pose a greater escape risk based on the deportation proceedings awaiting them after they complete their term of imprisonment. 7

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enhancement" added to his sentence (presumably the deportation consequences), that the " enhancement"was a hidden form of double jeopardy, and that, therefore, he did not fully understand the impact and consequences of his plea agreement. The Double Jeopardy clause applies only to criminal proceedings, or proceedings that are " essentially criminal"in nature. Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006). The purpose of the clause " to prevent successive proceedings for the same is offense."De la Teja v. United States, 321 F.3d 1357, 1364 (11th Cir. 2003). Deportation proceedings are civil in nature and concern only a person' eligibility to remain in this s country. Id. As a result, deportation proceedings " cannot form the basis for a double jeopardy claim." Id. at 1365. See also Zuniga v. Greene, 53 F. Supp. 2d 1100 (D. Colo. 1999). To the extent Barajas is asserting that his attorney did not provide effective assistance because she did not raise a double jeopardy issue, Barajas has failed to show any error on the part of his attorney. Accordingly, it is ordered that the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed October 15, 2002 (Docket No. 33), is denied. DATED at Denver, Colorado, on March 30, 2007. BY THE COURT:

s/ Walker D. Miller United States District Judge

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