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Counts 3 and 4 also charged defendant with aiding and abetting in violation of 18 U.S.C. § 2.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:03-CR-0087 (01)

§

ELOY VENZOR §

REPORT AND RECOMMENDATION TO DENY,

DEFENDANT’S MOTION TO VACATE,

SET ASIDE, OR CORRECT SENTENCE

Defendant ELOY VENZOR has filed with this Court a Motion to Vacate, Set Aside or

Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons hereinafter expressed, the

undersigned Magistrate Judge is of the opinion defendant is entitled to no relief and recommends

the motion to vacate, set aside or correct sentence be DENIED.

I.

FACTS AND PROCEDURAL HISTORY

On November 5, 2003, defendant VENZOR was charged in a four-count indictment as

follows: Counts 1 and 3, possession with intent to distribute 50 grams or more of

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); Count 2, possession of a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); Count

4, conspiracy to possess with intent to distribute 50 grams or more of methamphetamine in

violation of 21 U.S.C. § 846.1

 On November 21, 2003, pursuant to a plea agreement, defendant

VENZOR pleaded guilty to Counts 1 and 2. On March 4, 2004, the Court sentenced defendant

 

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Counts 3 and 4 were dismissed.

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to a term of 87 months imprisonment on Count 1, 60 months imprisonment on Count 2, such

terms to be served consecutively, concurrent five (5) year supervised release terms, and a special

assessment of $200.00.

2

 Defendant VENZOR did not directly appeal his sentence.

On December 19, 2004, defendant filed the instant Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. On January 24, 2005, the

government filed its response in opposition to defendant’s motion to vacate. On February 22,

2005, defendant VENZOR filed a reply to the government’s response. 

II.

DEFENDANT'S ALLEGATIONS

Defendant VENZOR raises the following grounds in support of his contention that his

conviction and sentence were imposed in violation of the Constitution or laws of the United

States:

1. Counsel was ineffective for failing to pursue a plea agreement which

protected defendant from a consecutive sentence for the weapon’s violation;

2. Counsel was ineffective for failing to object to the government’s refusal to

file a motion for downward adjustment; 

3. The government breached the terms of the plea agreement by failing to file a

motion for a downward adjustment; 

4. Counsel was ineffective for failing to object when the government breached the

plea agreement; and 

5. The Court’s application of the Guidelines in determining his sentence violated his

Sixth Amendment rights pursuant to Blakely v. Washington, ____ U.S. ____, 124

S.Ct. 2531, 159 L.Ed.2d 403, 72 U.S.L.W. 4546 (June 24, 2004).

 

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III.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his ineffective assistance of counsel claims, Claims 1, 2, and 4, defendant argues

counsel was ineffective for failing to pursue a plea agreement which protected defendant from a

consecutive sentence for the 924(c) weapon charge, for failing to object to the government’s

refusal to file a motion for downward adjustment, and for failing to object when the government

breached the plea agreement.

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). The question of

whether a defendant has been subjected to ineffective assistance of counsel is a mixed question

of fact and law. United States v. Rusmisel, 716 F.2d 301, 304 (5th Cir. 1983).

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. As for the issue of prejudice, defendant must do more than

simply allege prejudice, he must "affirmatively prove" prejudice. See Bonvillain v. Blackburn,

780 F.2d 1248, 1253 (5th Cir.), cert. denied, 476 U.S. 1143 (1986) (Strickland, 466 U.S. at 693).

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

 

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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). Counsel is not required to pursue every path until it bears

fruit or until all conceivable hope withers. Lovett v. State of Florida, 627 F.2d 706, 708 (5th Cir.

1980). A strategy is not proven wrong because, if as is the usual circumstance, a guilty person is

convicted. Cockrell at 1429; United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980) (failure

to object to the introduction of a letter did not so infect the trial with unfairness as to make the

resulting conviction a denial of due process).

There is a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance, and tactical decisions of trial counsel are entitled to a high

degree of deference. Strickland, 466 U.S. at 692. A defendant must show that counsel’s

deficient performance prejudiced the defense. Id. Prejudice is found where “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. Furthermore, the focus of the prejudice analysis is on whether

the result of the proceeding was fundamentally unfair or unreliable because of counsel’s

ineffectiveness. Lockhart v. Fretwell, 113 S.Ct. 838, 844 (1993). 

A.

Claim 1 - Failing to Pursue Better Plea Agreement

In his first claim, defendant VENZOR argues counsel was ineffective for failing to pursue

a plea agreement which would have protected defendant from a consecutive sentence for the

924(c) weapon charge. Defendant has not put forth any facts showing such a plea bargain was

possible nor has he shown what counsel could have done to secure such a plea agreement. 

 

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These claims are in effect the same because the failure of the government to file the motion for downward adjustment

was the alleged breach of the plea agreement.

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Defendant VENZOR has not even alleged he discussed with counsel what other plea bargains

might be available nor has he alleged he ever told his attorney he was dissatisfied with the plea

bargain offer he accepted. In the plea agreement defendant VENZOR also stated he was satisfied

with his counsel’s representation.

More importantly, even if the Court were to assume, solely for purposes of argument, that

counsel should have sought, but did not seek, a plea bargain agreement which would have

included dismissal of the 924(c) count, defendant VENZOR has completely failed to show the

government would have offered or agreed to such a plea bargain. Consequently, no prejudice has

been shown.

Defendant’s allegation is conclusory and he has failed to meet his burden under

Strickland.

B.

Claims 2 and 4, Failure to Object to Government’s Breach of Plea Agreement and

Failure to Object When Government Refused to File a Motion for Downward Adjustment

Defendant also alleges counsel was ineffective in his second and forth claims. These two

claims are essentially the same. Defendant contends he pled guilty based upon his understanding

the government would file a motion for downward adjustment for assistance he provided to the

government. He alleges the government refused to file the motion, thus breaching the plea

agreement, and that counsel was ineffective for failing to object when the government refused to

file the motion for downward adjustment and thereby breached the plea agreement.3

The plea agreement, however, did not contain any promise to file a motion for downward

departure. Contrary to defendant’s allegation, the record from the guilty plea and defendant’s

 

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statements in open court during the plea contradict his allegation. At the rearraignment and plea

held November 21, 2003 the Court questioned defendant as follows:

The Court: And have you read the documents in this case including the plea

agreement?

The Defendant: Yes, I have.

The Court: Has anybody sought to force you to plead guilty, threatened you or

in any way whatsoever tried to force you to plead guilty?

The Defendant: No, Your Honor.

The Court: Now, you say you’ve read the plea agreement. Do you think you

understand it?

The Defendant: Yes, I do.

The Court: Has anybody made any promise or representation to you that is not

in the written plea agreement?

The Defendant: No, m’am.

Government’s Appendix to Response at 10. Defendant’s statement at the plea hearing is

contradictory to his present allegation that the government made a promise to file a motion for

downward departure. Defendant VENZOR’s statement denying any representation or promise

outside the plea agreement had been made was under oath, and he has not shown any reason he

should not be held to the statements he made in open court and under oath. Further, in his motion

to vacate, defendant admits no direct promise was made to him by the government, and

acknowledges the government informed the court that his cooperation had been helpful but was

not sufficient to warrant a motion for downward departure. This complied with the plea

agreement. Defendant has not demonstrated the plea agreement was breached and he has failed to

demonstrate counsel was ineffective for failing to object to the government’s refusal to file a

motion for downward departure and/or for failing to object to an alleged breach of the plea

agreement when such objections would have been meritless.

 

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IV.

CLAIM 3 IS PROCEDURALLY BARRED

Defendant VENZOR alleges in his third claim that the government breached the terms of

the plea agreement by failing to file a motion for a downward adjustment. As set forth above,

this claim is without merit. Further, such claim was not raised on direct appeal, and defendant

presents it for the first time in this section 2255 motion. The government maintains defendant has

raised this issue for the first time without establishing cause and prejudice to excuse his failure to

raise such issues on direct appeal. 

Following a conviction and the exhaustion of or waiver of the right to a direct appeal, a

defendant is presumed fairly and finally convicted. United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). 

As a result, a § 2255 review of a conviction is ordinarily limited to questions of a constitutional

or jurisdictional magnitude. These issues may not be raised for the first time on collateral review

if they were not raised on direct appeal, without a showing of cause and prejudice. Other types

of error, non-constitutional or non-jurisdictional, may not be raised in a § 2255 motion to vacate

unless the defendant is able to demonstrate the error could not have been raised on direct appeal

and, if condoned, would result in a complete miscarriage of justice. United States v. Cervantes,

132 F.3d 1106 (5th Cir. 1998). Claims of ineffective assistance of counsel are ordinarily not

presented on direct appeal, but instead are presented in a § 2255 motion. United States v.

Brewster,137 F.3d 853, 859 (5th Cir. 1998).

Defendant VENZOR’s third claim presented in this § 2255 motion to vacate, is not

cognizable because VENZOR did not raise such issue on direct appeal and has failed to show

adequate cause and prejudice for his failure to raise the issue on direct appeal. Interestingly,

 

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defendant VENZOR claims he was unable to raise this issue on direct appeal because of a waiver

of appeal in the plea agreement. The plea agreement however, did not contain a waiver of appeal. 

V.

BLAKELY AND BOOKER CLAIMS

Defendant appears to challenge his March 4, 2004 sentence based upon the January 12,

2005 United States Supreme Court decision in United States v. Booker, 543 U.S. 220, 125 S.Ct.

738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court extended the rules announced in the

prior decisions of Apprendi v. New Jersey; 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), and Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403, 72 

U.S.L.W. 4546 (June 24, 2004), to the federal Sentencing Guidelines. The rule, essentially held

that, 

[P]ursuant to the Sixth Amendment, any fact, other than the fact of a prior

conviction, “which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.

Ct. at 756. A different majority of the Court then excised certain statutory

provisions that made the Guidelines mandatory, thereby rendering the Guidelines

advisory only. Id. at 756-57. 

In re Elwood, No. 05-30269 at 2, April 28, 2005 (5th Cir. 2005) citing Booker. Defendant Elwood

alleged that, pursuant to Booker, the district court’s application of the Guidelines in determining

his sentence violated his Sixth Amendment rights. The Fifth Circuit has held, however, that the

United States Supreme Court did not make Booker retroactive to cases on collateral review. In re

Elwood, No. 05-30269 at 3.

Therefore, under the law of this circuit, defendant’s claim that his March 4, 2004 sentence,

assessed under the federal Sentencing Guidelines, is unconstitutional based upon 

 

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Booker and Blakely is foreclosed. Such a claim is not cognizable in a section 2255 claim.

VI.

RECOMMENDATION

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

vacate, set aside and correct sentence, filed by defendant ELOY VENZOR be DENIED.

VII.

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 10th day of May 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

 

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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 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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