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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

UNITED STATES OF AMERICA,
Plaintiff,

vs.
JOSE RIVERA-CARBAJAL,

_________________________________

Defendant.

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2:11-cr-00427-HDM-CWH
2:13-cv-01068-HDM

ORDER

On June 7, 2012, defendant pled guilty to a single-count
indictment charging him with being a deported or removed alien
unlawfully found in the United States. Defendant pled without the
benefit of a plea agreement. On November 13, 2012, the court
sentenced defendant to 51 months imprisonment. Defendant appealed.
On June 21, 2013, the Ninth Circuit affirmed the court’s judgment.
Presently before the court is defendant’s pro se motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255
(#43). The government has responded (#51). Defendant has not
filed a reply, and the time for doing so has expired.

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Pursuant to § 2255, a federal inmate may move to vacate, set
aside, or correct his sentence if: (1) the sentence was imposed in
violation of the Constitution or laws of the United States; (2) the
court was without jurisdiction to impose the sentence; (3) the
sentence was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack. Id. § 2255.

Defendant advances two grounds for relief, both asserting
ineffective assistance of counsel. Ineffective assistance of
counsel is a cognizable claim under § 2255. Baumann v. United
States, 692 F.2d 565, 581 (9th Cir. 1982). In order to prevail on
a such a claim, the defendant must meet a two-prong test.
Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the
defendant must show that his counsel’s performance fell below an
objective standard of reasonableness. Id. at 687-88. “Review of
counsel’s performance is highly deferential and there is a strong
presumption that counsel’s conduct fell within the wide range of
reasonable representation.” United States v. Ferreira-Alameda, 815
F.2d 1251, 1253(9th Cir. 1986). “The question is whether an
attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom.” Harrington v. Richter, – U.S. –,
131 S. Ct. 770, 787-88 (2011). Second, the defendant must show
that the deficient performance prejudiced his defense. Strickland,
466 U.S. at 687. This requires showing 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 694.

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I. Ground One – Plea Agreement

Defendant’s first ground for relief asserts that his pretrial
counsel, Johnathan Sussman, was ineffective with respect to a “fast
track” plea agreement offered by the government. Ineffective
assistance of counsel claims may be based on alleged deficiencies
during the plea bargaining stage. See Missouri v. Frye, — U.S. – ,
132 S. Ct. 1399 (2012); Lafler v. Cooper, – U.S. –, 132 S. Ct. 1376
(2012). The following facts relevant to defendant’s claim appear
from the record.

At a calendar call on March 27, 2012, the court granted the
parties’ stipulation to continue the trial from May 2, 2012, to
June 5, 2012. According to defendant, “just minutes prior” to the
calendar call, Sussman advised him that the government was offering
him a “fast track” plea agreement. (Def. Mot. 12). On May 8,
2012, the parties filed a memorandum indicating defendant intended
to plead guilty without a plea agreement. A change of plea hearing
was set for June 7, 2012. At the hearing, the court asked
defendant whether his attorney had “been responsive to everything
[he had] wanted him to do on [his] behalf?” Id. at 3. Defendant
responded: “So far he is, yes, so far.” Id. The government,
represented by Robert Bork, noted for the record that it had
extended a fast track plea offer to defendant but that defendant
had rejected the offer:

MR. BORK:

Your Honor, if I may, consistent with the
Court’s recent comments about your concern that
you put on the record if there’s been plea
offers made, there was a plea offer made in
this case under our Fast Track Program. The
benefit would have been the binding plea, where
the government would have moved for a two-level
reduction; and, in all likelihood, would have
also moved for the third point. So, that would

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THE COURT:

DEFENDANT:
THE COURT:
DEFENDANT:
THE COURT:

DEFENDANT:
THE COURT:

DEFENDANT:
THE COURT:
DEFENDANT:

have been a three-point benefit down to offense
level 19. But, that has been rejected.
All right. Did that -- did you get that plea
agreement offered to you?
Yes, Your Honor.
And you discussed it with your attorney?
Yes, I did.
Now I don’t want to know what you talked about,
but was it your final decision? You made the
final decision, did you, to reject that plea
agreement?
Yes, Your Honor.
And did your attorney force you to make that
decision?
No, Your Honor.
Did you do it of your own free will?
Yes, sir.

(Doc. #41 (Change of Plea Tr. 13-14)).

At his sentencing on November 13, 2012, defendant raised the

issue of the rejected plea, saying:

Okay. Your Honor, the only reason my previous
attorney -- the only reason that I didn't
accept the deal there for 37 months is because
he just offered me the Fast Track. He never
told me how many months I was -- he was giving
me -- I mean they were offering me until I came
to the court, And then I say no. But I was
never, I never aware of what they were going to
give me or were offering me. The only time that
they -- you know, they granted Fast Track, but
that was it. And then they call me to court.
And that was the only reason why I didn’t
accept it.

(Doc. #42 (Sentencing Tr. 37)). To this, the government responded:

Your Honor, just for the record, I make notes
when I have hearings, and I will note that
first in my file is an unexecuted plea
agreement -- pardon me –- that has the offense
level listed in there. We never agree to

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criminal history category. And my notes show
that when Mr. Sussman was his attorney back in
June when he pled, that we waited for over an
hour, and then he came out and told me that the
defendant did not want the Fast Track. And so
that’s the records I have from that hearing.

Id. at 37-38. The government’s representation that “we waited for
over an hour” is corroborated by the record, which shows that
although the change of plea hearing was scheduled for 10:30 a.m.,
it did not begin until 11:44 a.m.

Defendant admits that he was aware of the plea offer but

argues that he rejected it because Sussman was ineffective. While
defendant’s assertions of Sussman’s ineffective acts and omissions
are numerous, they all boil down to one simple allegation: that
Sussman failed to timely and adequately explain the fast track plea
offer. Defendant argues that if the offer had been sufficiently
explained to him, he would have accepted it. Had defendant
accepted the plea offer, his sentence would very likely have been
lower than the sentence he is currently serving.

For several reasons, the court finds defendant’s current
contention that he rejected the plea offer because it wasn’t
sufficiently explained unsupported by the record. At his change of
plea hearing, defendant expressly stated that he had discussed the
fast track plea offer with Sussman, that he had rejected the offer
of his own free will, and that he was satisfied with Sussman’s
representation. Defendant did not at that time indicate that he
did not understand the plea agreement or that he needed more time
to consider it. In addition, although defendant stated at
sentencing that Sussman had not told him how many months he would
get under the agreement, defendant has not alleged that he did not

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understand that his sentence would be lower with a plea agreement.
Finally, by pleading without the benefit of a plea agreement,
defendant preserved his appellate rights. The fact that defendant
subsequently appealed his sentence persuades the court that
defendant made an informed and considered decision to take his
chances on appeal rather than waive that right in exchange for a
reduced sentence.

The court finds defendant’s assertion that Sussman did not

explain the plea agreement to him also palpably incredible. First,
as just noted, defendant told the court that he had discussed the
plea offer with Sussman. Further, more than two months passed
between the time defendant learned of the plea offer and the time
he changed his plea. Even if Sussman was difficult to reach during
that time period, defendant had at least an hour to go over the
plea agreement with Sussman before entering his change of plea.
The court finds it highly improbable that during this time period
Sussman did not explain the offer to defendant. 1

In sum, the record clearly shows that defendant made a
considered and informed decision to plead guilty without an
agreement and that his decision to reject the plea offer was not
based on ineffective conduct of his counsel. Ground One is
therefore without merit.
II. Ground Two – Sentencing Enhancement

Defendant’s second ground for relief challenges his sentencing

There is no evidence before the court that defendant was compelled
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to accept or reject the plea offer at the March 27, 2012, hearing. However,
even if he had been, his statements to the court at his change of plea
hearing indicate that his decision to reject the plea offer was considered
and informed.

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and appellate counsel’s failure to object to or appeal the 16-level
enhancement for a crime of violence that was applied to his
sentence.

Pursuant to United States Sentencing Guidelines §

2L1.2(b)(1)(A)(ii), a 16-level enhancement is applied to a
defendant’s sentence if the defendant unlawfully entered or
remained in the United States after being convicted of a “crime of
violence.” A crime of violence includes a conviction for a felony
that is an “offense under federal, state or local law that has as
an element the use, attempted use, or threatened use of physical
force against the person of another.” Id. app. n.1(b)(iii).

The conviction for which defendant received the enhancement

was a battery constituting domestic violence, third offense, under
Nev. Rev. Stat. §§ 200.481, 200.485 and 33.018. Under Nevada law,
a battery constituting domestic violence, id. § 33.018, has as an
essential element a “battery,” which is defined as “any willful and
unlawful use of force or violence upon the person of another,” id.
§ 200.481. Because it was his third offense, the conviction was a
felony. Id. § 200.485.

Defendant can establish neither ineffective assistance of

counsel nor prejudice from counsel’s failure to raise this issue.
The judicially noticeable documents underlying defendant’s
conviction – which were in the possession of the United States
Probation Office and available to defendants’ counsel – clearly
showed that defendant had admitted to conduct that qualified as a
crime of violence under § 2L1.2(b)(1)(A)(ii). In his written
guilty plea agreement, defendant “agree[d] to plead guilty to
BATTERY CONSTITUTING DOMESTIC VIOLENCE – 3RD OFFENSE . . . as more

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fully charged in the charging document” and admitted “the facts
which support all the elements of the offense(s) to which I now
plead as set forth in the charging document”. The charging
document (the amended information) charged defendant with
“grabbing” his wife “by the hair and wrist, forcing her to the
floor, and dragging [her] across the floor.” These documents thus
clearly show that the facts underlying defendant’s conviction
involved “the use of physical force against the person of another.”

Counsel considered the documents underlying defendant’s

conviction in deciding whether and how to object to the 16-level
enhancement. (See Doc. #53 (Riddle & Shell Decls.)). Further, at
the time of defendant’s sentencing, both the guilty plea and the
charging document would have been properly considered by the court
in evaluating whether defendant’s conviction was a crime of
violence. See United States v. Gomez-Leon, 545 F.3d 777, 784 (9th
Cir. 2008). Because the documents show that defendant’s conviction
qualified as a crime of violence, any objection or appeal to the
contrary would have been rejected. Therefore, counsel were not
ineffective for failing to raise the issue nor was defendant
prejudiced by their conduct in this regard. See Shah v. United
States, 878 F.2d 1156, 1162 (9th Cir. 1989) (an attorney’s failure
to raise a meritless legal argument is not ineffective assistance
of counsel).
III. Certificate of Appealability

The standard for issuance of a certificate of appealability

calls for a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28
U.S.C. § 2253(c) as follows:

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Where a district court has rejected the
constitutional claims on the merits, the
showing required to satisfy §2253(c) is
straightforward: The petitioner must
demonstrate that reasonable jurists would find
the district court’s assessment of the
constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where,
as here, the district court dismisses the
petition based on procedural grounds. We hold
as follows: When the district court denies a
habeas petition on procedural grounds without
reaching the prisoner’s underlying
constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial of
a constitutional right and that jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v.
Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). The Supreme Court
further illuminated the standard for issuance of a certificate of
appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003). The
Court stated in that case:

We do not require petitioner to prove, before
the issuance of a COA, that some jurists would
grant the petition for habeas corpus. Indeed,
a claim can be debatable even though every
jurist of reason might agree, after the COA has
been granted and the case has received full
consideration, that petitioner will not
prevail. As we stated in Slack, “[w]here a
district court has rejected the constitutional
claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable
jurists would find the district court’s
assessment of the constitutional claims
debatable or wrong.”

Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).

The court has considered the issues raised by defendant with

respect to whether they satisfy the standard for issuance of a
certificate of appeal and determines that none meet that standard.

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The court will therefore deny defendant a certificate of
appealability.
Conclusion

Defendant has failed to establish that any of his attorneys
rendered ineffective assistance of counsel. To the extent any of
defendant’s specific arguments have not been not addressed in this
order, the court finds them to be without merit. Defendant’s
motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 (#43) is accordingly DENIED.

IT IS SO ORDERED.
DATED: This 4th day of March, 2014.

____________________________
UNITED STATES DISTRICT JUDGE

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