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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

5:02cr5-RH

vs.

REYNALDO HERNANDEZ-REYES,

Defendant.

 /

ORDER ON ADDENDUM TO RESPONSE

The undersigned long ago entered an order appointing counsel. Doc. 109. The

order addressed Defendant's pro se notice of appeal, which was clearly untimely and

was later dismissed by the Eleventh Circuit as untimely. Doc. 115. 

The court noted that Defendant had until December 9, 2002, to file a timely

notice of appeal, and had one year from that date to file a 28 U.S.C. § 2255 motion. 

Doc. 109, p. 2. The Federal Public Defender was appointed to represent Defendant in a

§ 2255 proceeding, with the § 2255 motion to be filed no later than December 8, 2003. 

Id. 

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 Pages 5 and 6 of the response were mistakenly numbered 2 and 3. 

5:02cr5-RH

Counsel filed a response to order appointing counsel on December 8, 2003. 

Doc. 117. 

After reviewing the record, after reviewing transcripts of the change-ofplea hearing and two sentencing hearings, after reviewing the transcript of

a telephone conference held on July 15, 2002, in which attorney Russell

K. Ramey was substituted as counsel for the Federal Public Defender, as

well as speaking with both of Defendant's previous attorneys, Elizabeth

Timothy and Russell K. Ramey, and having a brief telephonic conversation

with Defendant . . . through the services of an interpreter, the undersigned attorney for the Federal Public Defender's Office, files this

Response and concludes after consideration of the foregoing that there

exists no grounds for a petition for relief under 28 U.S.C. § 2255. 

Id., p. 1. 

The response to order appointing counsel summarizes the prior proceedings,

and the claims asserted in Defendant's pro se notice of appeal. Doc. 117, pp. 2-5.1

"With the exception of the speedy trial issue," it is argued, "all the other points have

been covered already," and there was no speedy trial violation. Id., p. 5. 

Counsel then filed an addendum to the response, asking the court to accept the

attached pro se § 2255 motion as an addendum. Doc. 118. The § 2255 motion itself

contains no grounds in support, but in the attached pages Defendant claims ineffective

assistance of counsel at sentencing. He contends that counsel should have requested

a downward departure based on role in the offense, pursuant to U.S.S.G. 3B1.2(a),

because Defendant was a "simple driver." Doc. 118, attachment (first handwritten

page). He also argues that counsel should have requested a reduction under the safety

valve. Id. (second handwritten page). 

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 If a defendant meets certain criteria, the safety valve allows the court to impose

a sentence pursuant to the sentencing guidelines, without regard to the statutory

minimum. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. 

5:02cr5-RH

These claims are unsupported. Section 3B1.2(a) authorizes a four level

decrease in the offense level for a minimal participant, but there is no indication that

Defendant was entitled to a reduction. PSR, ¶ ¶ 11, 19 (no for basis aggravating or

mitigating role adjustment); Doc. 112, pp. 29 (Government argument that Defendant

"facilitated the entire deal, linking the purchaser with the source," and said that it would

not have happened without him, "driving people around and making introductions"); 33-

35 (court noting difficulty in determining relative culpability, Defendant was "higher in the

distribution chain," which sometimes can mean less responsibility but, "[o]ther things

being equal, people higher in the chain are generally more culpable than people lower in

the chain;" also noting that Defendant's difficulty with English should neither be held

against him nor afford more favorable treatment). Additional argument in an attempt to

minimize Defendant's role would probably not have been successful, and could well

have resulted in loss of credit the court granted with misgivings, infra. 

The claim that counsel failed to seek safety valve sentencing is simply incorrect. 

Defendant was sentenced without regard to the ten year statutory maximum under the

"safety valve,"2

 and also received a two level reduction to his offense level pursuant to §

2D1.1(b)(6). PSR ¶ ¶ 17, 47-49, 70-72. The Government objected, but the court

overruled the objection "[w]ith considerable misgivings." Doc. 112, p. 22. This resulted

in a sentence range of 108-135 months. Id., pp. 22-23; PSR ¶ ¶ 48, 72. Again with

"substantial misgivings," the court sentenced Defendant at the low end of his guidelines

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 Defendant received a three level decrease for acceptance of responsibility. 

PSR, ¶ 22. See also doc. 112, p. 32 (noting that Defendant had received "significant

time off of this sentence" for acceptance of responsibility, but there were now

"substantial grounds to doubt that Mr. Hernandez-Reyes has accepted responsibility for

what he did."). 

4

 Whether additional claims would be timely under the one year limitations period

of § 2255 is another matter. 

5:02cr5-RH

range, noting that there were grounds for doubting whether Defendant had accepted

responsibility. Id., pp. 29-34.3 

Counsel has not supported Defendant's pro se claims with any argument, and it

appears counsel would not have asserted the claims but for receipt of the pro se

motion. As § 2255 claims, these arguments are not in the nature of an addendum to a

response which is not a § 2255 motion; indeed the response finds no good faith basis

for a § 2255 motion. Defendant may not have been aware of this at the time he sent the

pro se document to counsel. 

If the court construes the purported "addendum" as a § 2255 motion and denies

it on the merits, authorization from the court of appeals will be necessary for the filing of

a second or successive motion. Defendant should therefore be given an opportunity to

withdraw the motion or amend it to incorporate all available claims.4

 See Castro v.

United States, 540 U.S. 375, 382-383, 124 S.Ct. 786, 792, 157 L.Ed.2d 778 (2003) (if

court recharacterizes pro se motion as initial § 2255 motion, must warn movant of intent

to do so and its consequences, and provide an opportunity to withdraw or amend the

motion). 

Counsel should consult with Defendant and explain to him his options. If

Defendant wishes to withdraw his § 2255 addendum, counsel shall file the appropriate

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 If the addendum is withdrawn, then there is no motion (§ 2255 or otherwise)

pending. 

6

 If counsel withdraws, Defendant will be directed to file additional argument pro

se. 

5:02cr5-RH

motion.5 If Defendant wishes to proceed under § 2255 and counsel cannot in good faith

present § 2255 claims on Defendant's behalf, he should move to withdraw.6 Cf. Local

Rule 11.1(D) (person represented by counsel shall not thereafter take any step be

heard pro se in the case).

Accordingly, it is ORDERED,

Counsel shall have until July 1, 2005, to consult with Defendant and either file a

motion to withdraw the addendum or a motion to withdraw as counsel. 

DONE AND ORDERED on June 6, 2005.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR. 

UNITED STATES MAGISTRATE JUDGE

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