IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

VLADIMER ORDONES-BARRERA, §

§

Petitioner, §

§

VS. § NO. 4:03-CR-069-A

§ (NO. 4:05-CV-499-A)

UNITED STATES OF AMERICA, §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of Vladimer OrdonesBarrera to vacate, set aside, or correct sentence pursuant to 28

U.S.C. § 2255. The court, having considered the motion, the

record, including the record in No. 4:03-CR-069-A, and applicable

authorities, finds that the motion should be summarily denied and

that United States of America need not respond. See Rule 4(b) of

the Rules Governing Section 2255 Proceedings for the United

States District Courts, 28 U.S.C. foll. § 2255.

I.

History

On March 13, 2003, petitioner was named in a one-count

indictment charging him with illegal reentry after deportation,

in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On April 11,

2003, petitioner pleaded guilty without benefit of a plea

agreement. However, a stipulated factual résumé was filed. On

August 1, 2003, petitioner was sentenced to a term of

imprisonment of 150 months, to be followed by a three-year term

 

 Case 4:03-cr-00069-A Document 38-2 Filed 08/17/05 Page 1 of 5 PageID 74
 

1

Petitioner admits that Blakely was decided long after he was

sentenced.

2

of supervised release, and ordered to pay a $100.00 mandatory

special assessment. Petitioner appealed and the United States

Court of Appeals for the Fifth Circuit affirmed the judgment and

sentence. United States v. Ordones-Barrera, No. 03-10777 (5th

Cir. Sept. 9, 2004). Petitioner did not pursue a petition for

writ of certiorari. 

II.

Grounds of the Motion

Petitioner sets forth three grounds in support of his

motion. Each alleges that he received ineffective assistance of

counsel. He urges that, at trial and on appeal, his counsel

should have urged error under Blakely v. Washington, 124 S. Ct.

2531 (2004).1 

III.

Standard of Review

After conviction and exhaustion, or waiver, of any right to

appeal, courts are entitled to presume that a defendant stands

fairly and finally convicted. United States v. Frady, 456 U.S.

152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). A defendant

can challenge his conviction or sentence after it is presumed

final only on issues of constitutional or jurisdictional

magnitude, and may not raise an issue for the first time on

collateral review without showing both "cause" for his procedural

 

 Case 4:03-cr-00069-A Document 38-2 Filed 08/17/05 Page 2 of 5 PageID 75
 

2

Although constitutionally ineffective assistance of counsel is

"cause," McCleskey v. Zant, 499 U.S. 467, 494 (1991), as discussed

infra, petitioner has failed to demonstrate that he received such

ineffective assistance.

3

default and "actual prejudice" resulting from the errors. Shaid,

937 F.2d at 232. Section 2255 does not offer recourse to all who

suffer trial errors. It is reserved for transgressions of

constitutional rights and other narrow injuries that could not

have been raised on direct appeal and would, if condoned, result

in a complete miscarriage of justice. United States v. Capua,

656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other

words, a writ of habeas corpus will not be allowed to do service

for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974);

Sunal v. Large, 332 U.S. 174, 178 (1947). Here, petitioner has

not made any showing of cause.2

IV.

Ineffective Assistance of Counsel

In order to prevail on an ineffective assistance of counsel

ground, petitioner must show (1) that his counsel's performance

fell below an objective standard of reasonableness and (2) that

there is a reasonable probability that, but for his counsel's

unprofessional errors, the result of the proceedings would have

been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). Both prongs of the Strickland test must be met to

demonstrate ineffective assistance. Id. at 697. To establish

the first prong, petitioner must overcome a strong presumption

that his counsel's conduct falls within the wide range of

 

 Case 4:03-cr-00069-A Document 38-2 Filed 08/17/05 Page 3 of 5 PageID 76
4

reasonable professional assistance. Id. at 689. It is not

enough to show that some, or even most, defense lawyers would

have handled the case differently. Green v. Lynaugh, 868 F.2d

176, 178 (5th Cir.), cert. denied, 493 U.S. 831 (1989). For the

second prong, petitioner must show that his counsel’s errors were

so serious as to “deprive him of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. If the

petitioner cannot show that the ineffectiveness of counsel

deprived him of a substantive or procedural right to which the

law entitles him, he must show that the result of the proceeding

was fundamentally unfair or unreliable. Williams v. Taylor, 529

U.S. 362, 392-93 (2000). Here, the record is clearly adequate to

fairly dispose of the claim of ineffective assistance. Hence,

further inquiry is unnecessary. Baldwin v. Maggio, 704 F.2d

1325, 1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984).

Petitioner's grounds are devoted to an attack on the

representation he was provided. Most of his argument is based on

the misimpression that the court was limited to the facts

detailed in the factual résumé in determining the proper

sentence. To the extent petitioner's allegations are conclusory,

they are insufficient to support a claim of ineffective

assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5th

Cir. 2000). Petitioner has not shown that he was deprived of any

substantive or procedural right, much less that the result of the

proceeding was fundamentally unfair or unreliable. Williams, 529

U.S. 392-93. 

 

 Case 4:03-cr-00069-A Document 38-2 Filed 08/17/05 Page 4 of 5 PageID 77
 

3

The court notes that it would have imposed the same sentence in

any event.

5

Petitioner focuses on the argument that his sentence is

unconstitutional in light of Blakely v. Washington, 124 S. Ct.

2531 (2004), because the court found facts that were not alleged

in the indictment. Petitioner was well-aware of the sentence he

faced as a result of his conduct. The factual résumé informed

him that he faced a term of imprisonment of twenty years, plus a

term of supervised release of three years. Appeal R. at 43. As

petitioner was sentenced within the statutory maximum, there is

no Apprendi issue. See Apprendi v. New Jersey, 530 U.S. 466

(2000). Nor is petitioner entitled to any relief under Blakely

or United States v. Booker, 125 S. Ct. 738 (2005).3 See United

States v. Mares, 402 F.3d 511, 519-21 (5th Cir. 2005). The cases

petitioner cites from other circuits are not persuasive.

V.

Order

For the reasons discussed herein,

The court ORDERS that petitioner's motion to vacate, set 

aside, or correct sentence be, and is hereby, summarily denied.

SIGNED August 17, 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

 Case 4:03-cr-00069-A Document 38-2 Filed 08/17/05 Page 5 of 5 PageID 78