United States District Court, M.D. Florida, Orlando Division
JUAN HERIBERTO CARRILLO, also known as, Armando Cotto-Ramos, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ANTOON II UNITED STATES DISTRICT JUDGE.
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.
asserts three grounds for relief. For the following reasons,
the Motion to Vacate is denied.
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.)  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.
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.
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.
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).
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).