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Carrillo v. United States

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

December 4, 2017

JUAN HERIBERTO CARRILLO, also known as, Armando Cotto-Ramos, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JOHN ANTOON II UNITED STATES DISTRICT JUDGE.

         This case is before the Court on the Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate.” Doc. 9) filed by Juan Heriberto Carrillo through counsel . pursuant to 28 U.S.C. § 2255 and Petitioner's Memorandum in Support of the Motion to Vacate (Doc. 19). The Government filed a Response to the Motion to Vacate (Doc. 17) in compliance with this Court's instructions. Petitioner was provided an opportunity to file a reply to the Government's Response but did not do so.

         Petitioner asserts three grounds for relief. For the following reasons, the Motion to Vacate is denied.

         I. Procedural History

         Petitioner was charged by Superseding Indictment with conspiracy to possess with intent to distribute five or more kilograms of cocaine (Count One) in violation of 21 U.S.C. § 846 and possession with intent to distribute five or more kilograms cocaine (Count Two) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii) and 18 U.S.C. § 2. (Criminal Case No. 6:11-cr-256-Orl-28GJK, Doc. 32.) [1] Pursuant to a plea agreement, Petitioner entered a plea of guilty to Count One before Magistrate Judge Gregory J. Kelly. Id. at Doc. Nos. 59, 140. Magistrate Judge Kelly filed a Report and Recommendation, recommending that the plea be accepted and that Petitioner be adjudicated guilty. Id. at Doc. 55. This Court accepted the plea and adjudicated Petitioner guilty of Count One. Id. at Doc. 79. The Court sentenced Petitioner to a 168-month term of imprisonment to run consecutive to the undischarged term of imprisonment imposed by the United States District Court for the Central District of California in case 92-865CR. Id. at Doc. 110. Pursuant to the plea agreement, the Government dismissed Count Two. Id.

         Petitioner appealed, and the Eleventh Circuit Court of Appeals affirmed Petitioner's conviction and sentence. Id. at Doc. 142. On April 13, 2016, the Court reduced Petitioner's sentence to a 135-month term of imprisonment. Id. at Doc. 196.

         II. Legal Standard

         The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense. Id. at 687-88. The prejudice requirement of the Strickland inquiry is modified when the claim is a challenge to a guilty plea based on ineffective assistance. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To satisfy the prejudice requirement in such claims, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

         A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

         As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         III. Analysis

         A. ...


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