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United States v. Mendez

United States District Court, M.D. Florida, Tampa Division

May 25, 2017

UNITED STATES OF AMERICA
v.
DAVID ALBERTO MENDEZ

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

         Mendez pleaded guilty to both one count of illegal re-entry after a previous deportation for a felony offense and one count of illegal entry at a time and place other than as designated by immigration officers. The plea was without a plea agreement. The district court imposed a sentence of fifty-one months, a sentence within the advisory guidelines range.

         Mendez moves under 28 U.S.C. § 2255 (Doc. 1) to vacate his sentence and alleges three grounds of ineffective assistance of counsel. The United States disputes each ground. (Doc. 9) Even though an earlier order (Doc. 10) instructed him to reply, Mendez filed no reply. The motion to vacate lacks merit.

         FACTS[1]

[I]f this case were to proceed to trial, the United States is prepared to prove beyond a reasonable doubt the defendant, David Alberto Mendez, is a native and citizen of El Salvador.
On May 7th, 1996, the defendant was convicted of sexual battery, armed burglary, and kidnapping in Case No. 95-31008 in Dade County, Florida, on May 7th, 1996.
The defendant was deported from the United States on July 24th, 1999. The defendant re-entered the United States after the deportation at a time and place other than as designated by Immigration officers.
On October 9th, 2012, the defendant was found in the Manatee County Jail, Middle District of Florida, by law enforcement. His fingerprints were submitted through the integrated automated fingerprint identification system and compared with those of David Alberto Mendez taken prior to his removal from the U.S. and the system indicated they are the same person.
The defendant admitted that he was an alien and citizen of El Salvador, that he was deported in 1999, and that he re-entered the United States illegally in or about 2003 on foot without seeking permission to do so. No information exists that the defendant either requested or received permission from any Immigration official to re-enter the United States after his deportation and the defendant was found to be voluntarily in the United States without having received the consent of the Secretary for the Department of Homeland Security to reapply for admission to the United States.

         II. GUILTY PLEA

         Mendez pleaded guilty and accepted the above factual basis. Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

See also United States v. Broce, 488 U.S. 563, 569 (1989) (“[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” A guilty plea waives a claim based on a pre-plea event, including a claim of ineffective assistance of counsel. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). However, because counsel's alleged deficient performance occurred after the plea, specifically, at sentencing, Mendez's claims of ineffective assistance of counsel are not barred by the guilty plea.

         III. INEFFECTIVE ...


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