1

Such term was to run consecutive to the six-month sentence also received on May 25, 2005, in Cause No. 2:05-CR-11.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:04-CR-0071 (01)

§

JOSE ANTONIO CORDERO-MARTINEZ §

REPORT AND RECOMMENDATION TO DENY DEFENDANT’S

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Defendant JOSE ANTONIO CORDERO-MARTINEZ has filed with this Court a Motion

to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. An evidentiary hearing

was held on June 14, 2006. For the reasons hereinafter expressed, the undersigned Magistrate

Judge is of the opinion the motion to vacate, set aside or correct sentence should be DENIED.

I.

FACTS AND PROCEDURAL HISTORY

On March 2, 2005, a jury convicted defendant CORDERO-MARTINEZ of the offense of

transporting illegal aliens in violation of 8 U.S.C. §§1324(a)(1)(A)(ii) and (a)(1)(B)(ii). On May

25, 2005, CORDERO-MARTINEZ was sentenced to a term of 25 months imprisonment with a

three (3) year supervised release term, and a special assessment of $100.00.

1

 Defendant

CORDERO-MARTINEZ did not directly appeal his sentence.

On January 18, 2006, defendant filed the instant Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. In the form motion, 

 

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defendant did not state any alleged grounds, but beside both the “Ground one” and “Ground two”

spaces he typed “See Attached Exhibit.” On January 24, 2006 the Court ordered defendant to

supplement to his motion to vacate and to state concisely and separately each ground on which he

claimed he was being held unlawfully. Defendant was ordered to number each ground

sequentially and briefly summarize the facts supporting each ground. 

On February 17, 2006, defendant filed his supplement alleging a single ground for relief, a

claim he received ineffective assistance of counsel because counsel failed to file a direct appeal.

On April 10, 2006, the government filed a response in opposition to defendant’s motion to vacate

and addressed two additional arguments of ineffective assistance of counsel i.e. that counsel failed

to present a defense at trial and refused to call defendant as a witness. On May 3, 2006,

defendant filed a Motion for Protective Order and for Additional Time to File a Reply

Memorandum. In such pleading, defendant reiterated that the only claim he was presenting in his

motion to vacate was the claim he received ineffective assistance of counsel because counsel

failed to file a direct appeal. An evidentiary hearing was held to consider that issue.

II.

INEFFECTIVE ASSISTANCE OF COUNSEL

The general rule is that in order to prevail on a claim that he was denied his constitutional

right to the effective assistance of counsel, defendant must satisfy two requirements. "First, he

would have to show that his attorney's conduct fell below an objective standard of reasonableness. 

Second, he would have to demonstrate a reasonable probability that he was prejudiced by his

attorney's unprofessional errors." United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989); see

also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 

 

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A showing that his attorney's conduct was deficient requires a "showing that counsel made

errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the

Sixth Amendment." Strickland, 466 U.S. at 687. The performance inquiry must center on

whether counsel's assistance was reasonable considering all the circumstances at the time of

counsel's conduct. Id. at 688-690. 

A habeas defendant claiming ineffective assistance of counsel bears the burden of

demonstrating by a preponderance of the evidence “both an identifiable lapse on the part of his

trial counsel and some actual, adverse impact upon the fairness of his trial resulting from that 

lapse.” United States v. Cockrell, 720 F.2d 1423, 1425 (5th Cir. 1983), quoting Boyd v. Estelle,

693 F.2d 388, 389-90 (5th Cir. 1981). “The only exceptions to this general rule are ‘actual or

constructive denial of the assistance of counsel altogether,’ various kinds of ‘state interference’

with counsel's assistance, and when counsel ‘is burdened by an actual conflict of interest’ which

adversely affects counsel's performance.” Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App.

1999) citing Strickland, 104 S.Ct. at 2067; United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039,

2047, 80 L.Ed.2d 657 (1984). “In these circumstances no affirmative proof of prejudice is

required because prejudice is irrefutably presumed.” Id. 

In this case, if the Court finds defendant CORDERO-MARTINEZ did instruct and/or ask

counsel to file a direct appeal, and counsel did not, then prejudice is established and defendant is

entitled to relief in the form of an out-of-time direct appeal. The merits of such a direct appeal are

not relevant. Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S.Ct. 1029, 1038-38, 145 L.Ed.2d

985 (2000).

The evidentiary hearing testimony by defendant CORDERO-MARTINEZ was that he 

 

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visited with his attorney three to four times prior to sentencing. The defendant speaks Spanish

but not much English. Communications with his trial counsel were through counsel’s assistant

who is fluent in Spanish. Defendant stated it was his understanding his sentence would run

concurrent with the sentence received in Cause No. 2:05-CR-0011, a charge of failure to appear.

When petitioner was sentenced, however, he did not receive concurrent sentences. Instead, he

received twenty-five months for the transporting illegal aliens charge and six months for the

failure to appear charge, such terms to run consecutively. Defendant testified he contacted or

attempted to contact his attorney by telephone three times after sentencing. The first time

defendant stated he called his attorney was three days after sentencing, the second call was about

two weeks after sentencing, and the third call was about a month after sentencing. During the

first call three days after sentencing, defendant stated he discussed the sentence and the

consequences of the Judge’s sentence with his trial counsel. It was defendant’s testimony he

requested counsel file an appeal, but was informed by counsel he could not get an appeal. 

Counsel’s assistant acted as translator during this discussion. On the other two occasions,

defendant said he did not speak directly with counsel but left messages with her assistant. 

Defendant insisted he relayed to trial counsel through her assistant that he wanted to appeal. 

Defendant further stated he sent counsel a letter requesting she file an appeal, but received no

response, although some days later he received a letter stating counsel’s representation had

terminated. Defendant testified he sent a second letter in which he requested an appeal and a third

letter in which he requested copies of all documents in his case. Defendant stated it was his

recollection he requested counsel to appeal four times. He further stated he didn’t feel like

counsel took his requests seriously because he never received a response.

Defendant’s trial counsel, Assistant Public Defender Bonita Gunden, was called as a 

 

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witness at the evidentiary hearing. She testified that prior to sentencing she met with defendant to

go over the Pre-Sentence Report (PSR). Counsel stated the PSR was clear that defendant’s

sentences were to run consecutively. Counsel testified she never told defendant his sentences

would run concurrently. Counsel also stated she had made a note on the indictment in the failure

to appear case that a consecutive sentence was required by statute. Counsel testified that when

she first met with defendant (which meeting was prior to the failure to appear) she explained his

sentence for the transporting illegal aliens charge would probably be in the range of 18 to 24

months. However, after defendant failed to appear for trial and was indicted and arrested on the

failure to appear charge, the expected sentence range obviously changed. Counsel stated she met

with defendant immediately after he was sentenced, along with two other defendants she

represented and who had been sentenced the same day, and explained the appeal process. 

Counsel stated she explained to defendant CORDERO-MARTINEZ that because he was

sentenced below the guideline range and because the Court had agreed to his request to be

incarcerated in California, that it probably wasn’t prudent to appeal. However, counsel stated she

would have filed a Notice of Appeal if defendant CORDERO-MARTINEZ had requested it. 

Counsel was firm in her testimony that defendant never requested an appeal. Counsel also

testified it was her recollection and that her records from the criminal case reflected, defendant

only called once, in June of 2005, and spoke with her assistant. Counsel also testified she

received one letter from defendant requesting copies of documents in his file. Counsel’s assistant,

Marisol Castanon, testified at the evidentiary hearing. Her testimony was to the communications

she had with the defendant. Ms. Castanon stated she never heard the defendant request an appeal

in person, on the phone or in writing.

 

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 In assessing the weight and credibility to be assigned to the testimony of the various

witnesses in the case, the Court finds the testimony of counsel and her administrative assistant

more credible than that of the defendant. Counsel is an officer of the Court, and has very little, if

anything, to gain by testifying falsely. Both counsel’s and her assistant’s recollection of events

are consistent with each other and with counsel’s records and time sheets. Counsel also noted in

her file that a concurrent sentence was not possible. Neither counsel nor her assistant recall any

conversations or letters with defendant except a June 2005 telephone call and one letter requesting

records. Additionally, it may very well be, and it certainly appears that defendant CORDEROMARTINEZ desired a sentence reduction. Very few defendants who are sentenced to serve time

are not desirous of a sentence reduction in some form. The fact that defendant contacted

counsel’s office and inquired about the possibility of obtaining a reduction of his sentence does

not, however, constitute a request for counsel to file a direct appeal. In fact, based upon the

testimony of Ms. Gunden and Ms. Castanon, the sole inquiry defendant made did not constitute a

request to appeal nor even evidence a desire to appeal.

Finally, counsel testified that it was her position at the time of sentencing that defendant

had been sentenced under the guideline range and that it thus would have been ludicrous to

challenge such sentence. Counsel adamantly stated that had defendant requested an appeal, she

certainly would have filed one, even if it resulted in an Anders brief. 

Based upon all of the above, the Court finds that defendant CORDERO-MARTINEZ has

not established by a preponderance of the evidence that he ever asked or instructed counsel to file

a direct appeal. Therefore, the defendant has not shown ineffective assistance of counsel and is

not entitled to any relief.

 

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III.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge that the motion to 

vacate, set aside and correct sentence, filed by defendant JOSE ANTONIO CORDEROMARTINEZ be DENIED.

IV.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file marked copy of this Report and 

Recommendation to defendant and to each attorney of record by the most efficient means

available.

IT IS SO RECOMMENDED. 

ENTERED this 21st day of July 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the file mark on the first page of this

recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the parties are

allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any objections must be

filed on or before the fourteenth (14th) day after this recommendation is filed. See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule

3.1, Local Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in 

 

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this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal

the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

 

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