United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
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.
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
[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
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.