United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2344
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Victor Manuel Tinajero-Ortiz, *
*
Petitioner – Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States of America, *
*
Respondent – Appellee. *
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Submitted: March 17, 2011
Filed: April 8, 2011
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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MURPHY, Circuit Judge.
Victor Manuel Tinajero-Ortiz pled guilty to possession with intent to distribute
methamphetamine, and consistent with his plea agreement he was sentenced to 120
months in prison. After his direct appeal was dismissed, Tinajero-Ortiz filed this 28
U.S.C. § 2255 action alleging that his trial counsel was constitutionally ineffectiveand
misled him to believe that by pleading guilty he would receive five years in prison.
The district court1 denied his petition but granted him a certificate of appealability.
1
The Honorable Karen E. Schreier, Chief United States District Judge for the
District of South Dakota, adopting the report and recommendation of the Honorable
Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota.
Tinajero-Ortiz argues that the district court erred by concluding that his trial counsel
was not ineffective and abused its discretion by denying him an evidentiary hearing.
We affirm.
I.
Tinajero-Ortiz is a Mexican citizen who earlier in his life was a promising
professional soccer player and scholarship recipient. At age 18 he illegally entered
the United States to spend time with his brother and later started a family in South
Dakota, where his children and other family members live. Since 1998 Tinajero-Ortiz
has been arrested four times; he was convicted twice for illegal reentry and once for
identity theft, and was deported after each conviction.
After petitioner's most recent illegal reentry, he was asked to transport a
package of methamphetamine from the southwestern United States to Rapid City,
South Dakota. Law enforcement was tipped off, and Tinajero-Ortiz was arrested at
the Rapid City bus terminal. In October 2007 he was indicted for possession with
intent to distribute methamphetamine and illegal reentry. He also faced a petition to
revoke a term of supervised release imposed for his identity theft conviction. An
assistant federal defender represented Tinajero-Ortiz after the indictment was filed.2
After he was arraigned, Tinajero-Ortiz indicated a willingness to cooperate. On
his attorney's advice Tinajero-Ortiz signed a proffer letter offering to tell the
government all that he knew about the drug trafficking conspiracy, in exchange for the
government's agreement that none of the information could be used in any criminal
proceeding against him. The proffer letter provided that the government made no
promises of any kind in return. The United States then debriefed Tinajero-Ortiz, who
2
Tinajero-Ortiz is represented by new counsel in this appeal.
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only provided minimal information about his drug contacts. The government decided
not to move for a downward departure for substantial assistance.
Subsequently Tinajero-Ortiz and the United States entered into a plea
agreement. Tinajero-Ortiz agreed to plead guilty to the drug charge. For its part the
government agreed to dismiss his illegal reentry charge and to recommend a sentence
at the low end of the guideline range with a concurrent term for any sentenced
imposed for revocation of his supervised release. Both parties agreed that if the
information Tinajero-Ortiz had provided would later prove to be useful, the
government would file a substantial assistance motion. The parties further agreed that
any sentencing recommendation was not binding on the court and that the statutory
minimum sentence was five years, while the maximum was forty years.
Tinajero-Ortiz asserts that his counsel told him that he would receive a five year
sentence in exchange for pleading guilty. He says that he believed the five year
statutory minimum recited in the plea agreement was the "low end" of the as yet
uncalculated guideline range. This alleged misrepresentation is at the heart of the
claim he now raises.
Soon after signing the plea agreement, Tinajero-Ortiz entered his guilty plea in
a hearing before U.S. District Court Judge Karen Schreier. Judge Schreier engaged
him in a lengthy plea colloquy, during which Tinajero-Ortiz indicated that he had read
and discussed the agreement with his attorney; that he understood all its terms and that
it represented "in its entirety all of the understanding" of the parties; that the
government had not made any separate promises; and that the terms of the agreement
were "merely recommendations" which the court could reject at sentencing. Tinajero-
Ortiz said he understood that five years was the minimum term of imprisonment and
forty years the maximum; and that the guideline range to be later determined by the
district court could be different from the range he had discussed with his attorney.
After agreeing that these were the terms of the agreement, Tinajero-Ortiz pled guilty.
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Before completing its Presentence Investigation Report (PSR), the probation
office calculated petitioner's guideline range to be between 120 and 150 months.
Under the terms of the plea agreement the parties had agreed to a sentence "at the low
end" of this range. Nevertheless, two weeks before sentencing petitioner's attorney
filed a sentencing memorandum requesting a downward variance to "three to five
years" or "five years or less." Ten days later the attorney withdrew this request and
instead moved the court "for a sentence at the low end of his guideline [range] as
ultimately determined by the court."
At the sentencing hearing, the district court adopted the proposed guideline
range in the PSR. His attorney stated that Tinajero-Ortiz agreed to "ask for a sentence
of 120 months as the guidelines contemplate." Counsel also stated that Tinajero-Ortiz
had hoped "to get a [60 month] sentence, a sentence that would be the mandatory
minimum," and that "when [he] looked at the guidelines, [a 60 month] sentence would
be about half of the low end of the guideline range." Tinajero-Ortiz addressed the
court, apologized for his criminal conduct and stated that he was "not a bad person."
He raised no objection to the court's calculation of the guideline range or to his
attorney's request for a 120 month sentence. The district court sentenced Tinajero-
Ortiz to 120 months in prison.
When Tinajero-Ortiz attempted to appeal his sentence, it was summarily
dismissed because of the appeal waiver in his plea agreement. Tinajero-Ortiz
subsequently filed this 28 U.S.C. § 2255 petition seeking to vacate his sentence on the
ground that his attorney had provided constitutionally ineffective assistance. He
complains that he received a ten year sentence instead of the five year mandatory
minimum, which his attorney allegedly promised if he pled guilty. Tinajero-Ortiz
states that if counsel had not assured him he would receive the five year minimum, he
would not have pled guilty.
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Magistrate Judge Veronica Duffy reviewed petitioner's assertions of ineffective
assistance at length and recommended denial of his petition. Applying the two part
test in Strickland v. Washington, 466 U.S. 668 (1984), she concluded that his
allegations of ineffective assistance were without merit. She determined that the
government's discretionary decision not to make a downward departure motion was
unassailable absent some allegation of bad faith. Even if his attorney had failed to
understand the terms of the plea agreement and had misrepresented them to Tinajero-
Ortiz, she concluded that he had failed to show Strickland prejudice. Regardless of
what he may have been told, "there was no guarantee that the court would sentence
him to 5 years."
Judge Schreier adopted in full the magistrate's report and recommendation after
concluding that Tinajero-Ortiz had "failed to show either that his counsel's
representation was objectively deficient or that any such deficiencies prejudiced the
defense and affected the judgment." She denied his § 2255 petition but granted him
a certificate of appealability. Petitioner now argues not only that his counsel provided
him constitutionally ineffective assistance, but also that he should have been granted
an evidentiary hearing by the district court.
II.
Tinajero-Ortiz first argues that the district court erred in concluding that his
counsel had not provided constitutionally ineffective assistance. "When addressing
post-conviction ineffective assistance claims brought under § 2255, we review the
ineffective assistance issue de novo and the underlying findings of fact for clear error."
United States v. Regenos, 405 F.3d 691, 692–93 (8th Cir. 2005). The two part
Strickland test"applies to challenges to guilty pleas based on ineffective assistance of
counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). Tinajero-Ortiz has the burden to
prove both that his counsel's representation "fell below an objective standard of
reasonableness," Regenos, 405 F.3d at 693, and that there is a "reasonable probability
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that, but for counsel's errors, he would not have [pled] guilty and would have insisted
on going to trial." Hill, 474 U.S. at 59.
Petitioner argues that his attorney provided constitutionally ineffective
assistance in two ways.3 He suggests first that counsel misled him by telling him that
he "would likely receive a sentence of five years for pleading guilty." Tinajero-Ortiz
points to counsel's original sentencing memorandum in which he requested the court
impose a sentence of "five years or less" or "three to five years," without mentioning
that the plea agreement stipulated that the parties would recommend a sentence "at the
low end" of the guideline range. Asserting that he would not have pled guilty without
counsel's misrepresentations, Tinajero-Ortiz argues he has satisfied the two part test
for ineffective assistance under Strickland.
Tinajero-Ortiz argues that his counsel was also constitutionally ineffective for
failing "to serve as a meaningful advocate during his attempted cooperation." He
complains that counsel simply "went along with what the prosecutor wanted during
[his] debriefings" without "defending his client's interest." Petitioner alleges that his
attorney failed to facilitate communication with the government so that he might
satisfy its expectations for his cooperation. He contends that "[w]ith proper guidance,
facilitation of communication, and management of expectations," he might have
received a better outcome at sentencing.
In response, the government argues that petitioner's attorney provided effective
assistance during both phases. It states that the record is "replete with evidence"
contradicting petitioner's allegation that he was promised a 60 month sentence. The
contradictions include (1) the plea agreement itself, which contained no such promise
3
The district court granted the certificate of appealability in part on the issue
whether petitioner's Fifth Amendment due process rights were violated, but he waived
that argument by failing to address it in his opening brief. See United States v.
Anderson, 570 F.3d 1025, 1031 n.3 (8th Cir. 2009).
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and an integration clause; (2) statements made by Tinajero-Ortiz at the plea hearing
that he had read and discussed the agreement with his lawyer and that the document
correctly stated the terms of his agreement with the government; and (3) the proffer
letter which expressly stated there was no guarantee that his cooperation would result
in a recommendation for a reduced sentence. The government also points to
petitioner's admission in the plea colloquy that he understood that the guideline range
could not be determined until after the PSR was prepared and that it might be different
than what his attorney predicted. Through his prior federal convictions, Tinajero-
Ortiz also had had prior experience with sentencing guideline calculations. The
government concludes that the alleged misrepresentations by counsel are "wholly
unsupported by the record."
As to the petitioner's other allegations, the government states that counsel
performed reasonably under prevailing professional norms by obtaining a written
proffer agreement protecting his client from its use of incriminating statements and
by giving Tinajero-Ortiz a chance for a reduced sentence if the information he
provided proved useful. The government also asserts that Tinajero-Ortiz cannot prove
prejudice because its decision not to move for a downward departure for substantial
assistance is unassailable absent an unconstitutional motive or bad faith. Since
Tinajero-Ortiz fails to allege either and even acknowledges that the government chose
not to make the motion because his assistance was "minimal," he simply cannot show
that he was prejudiced by his attorney's alleged failure to serve as a meaningful
advocate in respect to his not receiving credit for substantial assistance.
We agree that Tinajero-Ortiz cannot prevail on his claims in respect to counsel's
representation during plea negotiations or at the sentencing phase because he has not
shown Strickland prejudice. We need not examine whether counsel's representation
at either stage was deficient. See Strickland, 466 U.S. at 697 ("If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed."); Williams v. United States,
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452 F.3d 1009, 1014 (8th Cir. 2006). Tinajero-Ortiz has not shown that he "would not
have [pled] guilty and would have insisted on going to trial" absent his attorney's
misrepresentations. Hill, 474 U.S. at 59. At numerous presentencing points the
government and the district court informed Tinajero-Ortiz that he could be sentenced
to as many as forty years, that his advisory guideline range would not be determined
until after the PSR was completed, and that the final range might differ from what his
attorney told him. Petitioner himself raised no objection at sentencing to the guideline
range adopted by the court or to its 120 month sentence.
This case closely resembles Regenos, where we held that a petitioner's claim
of ineffective assistance of counsel failed "because she cannot prove that the result of
the plea negotiations would have been different had her counsel performed
adequately." 405 F.3d at 693. Because allegedly omitted information had been "fully
supplied to [the petitioner] throughout the plea process" and the district court had
"explicitly informed" the petitioner of the potentially applicable sentences during the
plea colloquy, the Regenos petitioner failed to prove Strickland prejudice. Here, the
government and the district court informed Tinajero-Ortiz multiple times that his
statutory sentencing range was between five and forty years and that his advisory
guideline range could be different from what his attorney had predicted. Tinajero-
Ortiz has thus failed to meet the burden of proving Strickland prejudice.
We also conclude that petitioner's attorney was not constitutionally ineffective
in respect to his potential cooperation with the government.4 Although Tinajero-Ortiz
argues that his lawyer failed "to serve as a meaningful advocate during his attempted
4
We may assume without deciding that the potential cooperation phase is a
"critical stage" of criminal proceedings to which the Sixth Amendment right to
counsel applies. See United States v. Leonti, 326 F.3d 1111, 1118 (9th Cir. 2003)
(holding that "attempted cooperation" is a critical stage of the proceedings because
persuading the government to file a substantial assistance motion is often "the last,
best hope of so many defendants").
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cooperation" and simply went "along with what the prosecutor wanted during the
debriefings," we fail to see what more counsel should have done. He secured a proffer
letter and sought to obtain a potential downward departure motion. Moreover,
Tinajero-Ortiz has a high hurdle to clear on the prejudice element. A downward
departure would have been required under the plea agreement for Tinajero-Ortiz to
receive his desired five year sentence. That decision rested almost entirely in the
hands of the government. See United States v. Wolf, 270 F.3d 1188, 1190 (8th Cir.
2001) (government decision not to move for downward departure for substantial
assistance is unassailable absent an unconstitutional motive or bad faith). No bad faith
or unconstitutional motives have been shown here. We therefore conclude that
Tinajero-Ortiz has failed to meet his burden to prove his counsel provided
constitutionally ineffective assistance.
III.
Tinajero-Ortiz finally argues that he should have been granted an evidentiary
hearing because of disputed and undeveloped facts. A § 2255 motion can be
dismissed without a hearing if "(1) the petitioner's allegations, accepted as true, would
not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true
because they are contradicted by the record, inherently incredible, or conclusions
rather than statements of fact." Sanders v. United States, 341 F.3d 720, 722 (8th Cir.
2003). We review a district court's decision to deny an evidentiary hearing for an
abuse of discretion. Regenos, 405 F.3d at 693.
Tinajero-Ortiz argues that the "true issue" in this appeal is whether he should
have been granted an evidentiary hearing on his "disputed claims of ineffective
assistance of counsel," especially because neither he nor his attorney has testified or
been cross examined regarding the attorney's representations regarding the plea
agreement. Remanding for an evidentiary hearing would allow further development
of the record which he claims "is essentially blank."
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The government responds that Tinajero-Ortiz is not entitled to an evidentiary
hearing because he "simply cannot establish prejudice." It argues that he cannot show
that he would have proceeded to trial absent his attorney's alleged misrepresentations
regarding the plea agreement or that the result of his cooperation attempt would have
been different had counsel more effectively communicated with the government. It
argues that petitioner's allegations are "contradicted by the record" and "inherently
incredible" because the proffer letter, the plea agreement, the plea hearing, and the
sentencing hearing all failed to show a promise of a 60 month sentence. Rather, they
show representations that his maximum sentence could be as high as forty years and
that the guideline range could be higher than his counsel had predicted. Had Tinajero-
Ortiz really been under a mistaken impression, he could have raised his concern either
at the plea hearing or the sentencing hearing, or at both.
We agree. Even if true, petitioner's allegations would not entitle him to relief
because he cannot prove Strickland prejudice on either claim. See Hill, 474 U.S. at
60 ("Because petitioner in this case failed to allege the kind of 'prejudice' necessary
to satisfy the second half of the Strickland v. Washington test, the District Court did
not err in declining to hold a hearing on petitioner's ineffective assistance of counsel
claim."); see also Regenos, 405 F.3d at 694; Sanders, 341 F.3d at 722–23. We
conclude that petitioner's claims of ineffective assistance are "contradicted by the
record [and] inherently incredible." Sanders, 341 F.3d at 722. The proffer letter, the
plea agreement, the plea colloquy, and the sentencing hearing sufficiently refute his
claims. Thus, the same district court which presided over those proceedings did not
abuse its discretion in denying Tinajero-Ortiz an evidentiary hearing.
For all of these reasons, we affirm the judgment of the district court.
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