# Lugo v. United States

> District Court, S.D. California · January 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10088909

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10088909

## How later opinions describe it (automated extraction)

- holding that district courts 2 ||retain authority to issue certificates of appealability under AEDPA

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 NOE RENE LUGO, Case No.: 3:17-CR-00482-JAH-1

12 Petitioner,
AMENDED ORDER DENYING
13 v. DEFENDANT’S MOTION TO
VACATE, SET ASIDE, OR
14 UNITED STATES OF AMERICA,
CORRECT SENTENCE PURSUANT
15 Respondent. TO 28 U.S.C. § 2255 [Doc. No. 119]
16
17 INTRODUCTION
18 Pending before the Court is Petitioner Noe Rene Lugo’s (“Defendant”) motion to
19 vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“motion”). (Doc.
20 No. 119). Respondent United States of America (“the Government”) filed a response
21 opposing Defendant’s motion. (Doc. No. 134). Having carefully considered the pleadings
22 in this action and for the reasons set forth below, the Court hereby DENIES Defendant’s
23 motion.
24 BACKGROUND
25 On February 24, 2017, a grand jury returned a five-count indictment charging
26 Defendant with one count of dealing in firearms without a license, in violation of 18 U.S.C.
27 § 922(a)(1)(A), and four counts of felon in possession of firearms and ammunition, in
28 violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. No. 1). On March 1, 2017, the
1 Court appointed an attorney for Defendant—Jami L. Ferrara, a Federal Defender—at his
2 arraignment. (Doc. No. 6).
3 On April 12, 2017, Jami Ferrara communicated a plea agreement from the
4 Government offering Defendant 70-87 months in custody. (Doc. No. 134, Jami Ferrara
5 Declaration at 1-2). The Government’s plea offer stated that the Government would likely
6 seek a sentence of 121-151 months or 15 years in custody if Defendant lost at trial. (Id.)
7 In July and August of 2017, Defendant was amenable to settling for 70-87 months in
8 custody but failed to accept the Government’s plea offer. (Id. at 5.)
9 On August 28, 2017, Defendant retained attorney Estevan R. Lucero and requested
10 a jury trial. (Doc. No. 121 at 2). On December 1, 2017, a jury found Defendant guilty on
11 all five counts. (Doc. No. 55). The Court then sentenced Defendant to a total of 200 months
12 in custody and three years of supervised release. (Doc. No. 72).
13 Defendant appealed his conviction and sentence. (Doc. Nos. 75, 79). The Ninth
14 Circuit Court of Appeals affirmed in part and vacated in part Defendant’s conviction and
15 sentence and remanded the case for re-sentencing. (Doc. No. 121 at 2). The Court
16 resentenced Defendant to a total of 180-months in custody and three years of supervised
17 release. (Doc. No. 116).
18 On July 2, 2021, Defendant filed his motion alleging ineffective assistance of
19 counsel. (Doc. No. 119). In his motion, Defendant requested additional time to file a
20 supplemental brief due to his limited access to the law library during the Covid-19
21 lockdowns. (Id. at 119 at 12-13). The Court granted Defendant’s request, and he filed a
22 supplemental brief on March 7, 2023. (Doc. Nos. 122, 124). On April 6, 2023, the
23 Government filed a motion requesting a partial waiver of the attorney-client privilege and
24 an order directing Defendant’s former counsel, Jami Ferrara and Estevan Lucero, to
25 provide declarations or testify at an evidentiary hearing. (Doc. No. 125). On May 9, 2023,
26 Defendant responded to the Government’s motion, waiving the attorney-client privilege
27 regarding communications Defendant placed directly at issue in his motion. (Doc. No.
28 127). On May 16, 2023, the Court granted the Government’s motion and ordered
1 Defendant’s former counsel to provide affidavits relating to Defendant’s § 2255 motion
2 and supplemental briefing. (Doc. No. 129). On August 7, 2023, the Government filed an
3 opposition to Defendant’s motion and included a declaration by attorney Jami Ferrara.
4 (Doc. No. 134). Although the Government solicited declarations from both Jami Ferrara
5 and Estevan Lucero, Mr. Lucero failed to respond or provide a declaration. (Id. at 2). On
6 September 6, 2023, Defendant replied to the Government’s opposition. (Doc. No. 135).
7 LEGAL STANDARD
8 Under 28 U.S.C. § 2255, a federal prisoner may move the court to vacate, set aside,
9 or correct their sentence on four grounds: (1) the sentence was imposed in violation of the
10 Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the
11 sentence; (3) the sentence exceeded the maximum authorized by law; or (4) the sentence is
12 otherwise subject to collateral attack. 28 U.S.C. § 2255(a); United States v. Speelman, 431
13 F.3d 1226, 1230 n.2 (9th Cir. 2005). However, a general “error of law does not provide a
14 basis for collateral attack unless the claimed error constituted a fundamental defect which
15 inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442
16 U.S. 178, 185 (1979). Defendant has the burden of establishing that he is entitled to post-
17 conviction relief pursuant to 28 U.S.C. § 2255. See United States v. Frady, 456 U.S. 152,
18 170 (1982).
19 DISCUSSION
20 Generally, a defendant who does not bring a claim on direct appeal cannot raise the
21 claim on collateral review. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006).
22 However, if a defendant does not bring an ineffective assistance of counsel claim on direct
23 appeal, they may still bring that claim later under 28 U.S.C. § 2255. Massaro v. United
24 States, 538 U.S. 500, 509 (2003). Defendant did not bring an ineffective assistance of
25 counsel claim on direct appeal and is making that claim now under 28 U.S.C. § 2255. (Doc
26 No. 119 at 5). Therefore, the Court deems the motion appropriate for consideration.
27 Under the Sixth Amendment, criminal defendants are entitled to “effective
28 assistance of counsel,” in which representation is objectively reasonable in light of
1 “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 686-88 (1984).
2 To sustain a claim for ineffective assistance, Defendant has the burden of satisfying
3 Strickland’s two-prong standard. Id. First, Defendant must show that his attorney’s
4 performance was deficient. Id. at 687. This requires a showing that his attorney made
5 errors so serious that they were not functioning as the “counsel” guaranteed to Defendant
6 by the Sixth Amendment. Id. Accordingly, Defendant must identify the acts or omissions
7 of his attorney that were the result of unreasonable professional judgment or were
8 otherwise outside the range of professional competent assistance. Id. at 690. Second,
9 Defendant must show that his attorney’s deficient performance prejudiced the defense. Id.
10 at 687. This requires showing “that there is a reasonable probability that, but for counsel’s
11 unprofessional errors, the result of the proceeding would have been different. A reasonable
12 probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
13 The Court need not address both prongs of Strickland’s two-prong standard if Defendant
14 makes an insufficient showing as to one prong. Id. at 697.
15 Defendant’s motion alleges ineffective assistance of counsel on the grounds that his
16 attorney “misadvised and misinformed” him about his sentencing exposure. (Doc. No. 119
17 at 4). Specifically, Defendant alleges his former counsel, Estevan Lucero, “asserted that
18 [Defendant] was looking at ten years imprisonment regardless if he plead guilty or chose
19 to go to trial.” (Id.) Defendant’s motion does not state the relief he is seeking.
20 In opposition, the Government contends Defendant fails to provide any support to
21 his conclusory allegations regarding Estevan Lucero’s misadvisal concerning Defendant’s
22 sentencing exposure. (Doc. No. 134 at 2). The Government contends Jami Ferrara’s
23 declaration contradicts Defendant’s claim. (Id.) The Government maintains Defendant
24 was properly advised of the potential sentencing exposure when the Government advised
25 Jami Ferrara that it was planning to seek a sentence in excess of 10 years. (Id.) The
26 Government further maintains Jami Ferrara communicated the sentencing exposure to
27 Defendant, and Defendant was present in court when the Government explained Defendant
28 faced a Guidelines Range in excess of 15 years in custody. (Id.)
1 In reply, Defendant maintains he “never once indicated to counsel Ferrara that he
2 wanted to proceed to go to trial” and “counsel Lucero provided Defendant with legally
3 unreasonable advice about whether to accept the plea offer when counsel Lucero advised
4 Defendant that he was facing a maximum sentence of 10 years in prison.” (Doc. No. 135
5 at 1). Defendant further maintains he “would not have [gone] to trial knowing he would
6 receive a sentence of 15 years or more if the advice of counsel Lucero were true that [he]
7 was facing a maximum of 10 years in prison.” (Id. at 2) Defendant argues his attorney’s
8 performance was deficient by failing to advise him of his sentencing exposure of 15 years
9 or more should he go to trial and lose.
10 In determining whether an attorney’s performance is deficient, courts look at
11 whether the defendant demonstrates “gross error” on the part of counsel that led to the
12 defendant’s rejection of a plea offer. See Turner v. Calderon, 281 F.3d 851, 880 (9th Cir.
13 2002) (quoting McMann v. Richardson, 397 U.S. 759, 772 (1970)); see also Davidson v.
14 Kernon, No. 3:17-CV-00421-H-MDD, 2018 WL 3913395 (S.D. Cal. Aug. 15, 2018)
15 (rejecting defendant’s ineffective assistance of counsel claim where defendant, sentenced
16 to life imprisonment, argues counsel failed to advise him to accept a six-year plea offer);
17 Anderson v. Paramo, No. 17-CV-1541-FJB (NLS), 2018 WL 5617718 (S.D. Cal. Oct. 30,
18 2018) (“A ‘defense attorney’s simple misjudgment as to the strength of the prosecution’s
19 case, the chances of acquittal, or the sentence a defendant is likely to receive upon
20 conviction, among other matters involving the exercise of counsel’s judgment, will not,
21 without more, give rise to a claim of ineffective assistance of counsel.’”) (quoting In re
22 Alvernaz, 2 Cal. 4th 924, 936 (1992)).
23 In Turner, defendant’s counsel conveyed to defendant a plea deal of 15 years to life
24 for second-degree murder but “did not encourage him to accept it because [h]e felt like [the
25 defendant] had a story to tell.” 281 F.3d at 880 (internal quotation marks omitted).
26 Defendant went to trial, and the jury returned a guilty verdict. Id. Defendant was thereafter
27 sentenced to death. Id. at 861. The Turner court held that defendant indicated no “gross
28 error” on counsel’s part and concluded that counsel was not deficient in informing
1 defendant about the plea offer. Id. at 881. The court held that defendant’s self-serving
2 statements that his counsel misinformed him of his sentencing exposure at trial was
3 “insufficient to establish that [the defendant] was unaware of the potential” of a higher
4 sentencing exposure. Id. at 881. The court further held, “counsel cannot be required to
5 accurately predict what the jury or court might find, but he can be required to give the
6 defendant the tools he needs to make an intelligent decision.” Id. The Court found
7 defendant was adequately informed that his case could result in a death sentence because
8 “he sat through the reading of his criminal information and the death-qualifying jury voir
9 dire” and “he was informed of the terms of the plea offer . . . [but] decided to turn it down.”
10 Id.
11 Similar to Turner, Defendant maintains Estevan Lucero misadvised him about his
12 sentencing exposure, indicating that Defendant would be looking at a maximum of ten
13 years in custody if he went to trial. Like Turner, Defendant chose to forego the plea offer
14 due to counsel’s advice and go to trial, where Defendant was sentenced to a more severe
15 penalty than counsel indicated. Without more, Defendant indicates no “gross error” on
16 Estevan Lucero’s part because Defendant “provides no legal basis for his claimed right . .
17 . to receive an accurate prediction of the outcome of his case.” Id. Additionally, the only
18 evidence indicating Estevan Lucero misadvised Defendant is Defendant’s self-serving
19 statements, which are “insufficient to establish that [Defendant] was unaware of the
20 potential” of a higher sentencing exposure of 15 years. Id. Like Turner, Defendant was
21 adequately informed that his case could result in 15 years or more in custody because
22 Defendant sat through his bond hearing where the Government explained in open court
23 that Defendant faced a Guidelines Range of a minimum of 15 years in custody. (Doc. No.
24 26, Bond Hearing Transcript at 4 (“The Defendant is charged not with the marijuana
25 distribution, just with the gun charges in this case, your Honor, and with that the guidelines
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1 are 180 to 135 months, which created tremendous incentive to flee.”)). Additionally, Jami
2 Ferrara communicated to Defendant the potential sentence of 15 years or more after the
3 Government advised Jami Ferrara of Defendant’s plea offer. (Doc. No. 134, Addendum at
4 1-2 (“The offer email stated that the Government would likely seek a sentence of 121-151
5 months on the gun sales counts with the felon in possession sentence to run consecutively,
6 which [Jami Ferrara] took to mean that [Defendant] would be looking at approximately 15
7 years in custody if he lost in trial . . . [Jami Ferrara] met with [Defendant] . . . and believe[d]
8 that [she] discussed the offer with him at that time….”)). Without more, Defendant’s self-
9 serving statement is insufficient to satisfy the first prong of Strickland. Thus, Defendant
10 has failed to satisfy his burden establishing his counsel’s performance was deficient. See
11 Strickland, 466 U.S. at 686-88.
12 In sum, Defendant’s allegations fall short of Strickland’s two-prong standard
13 because his motion fails to provide sufficient evidence to indicate his attorney’s conduct
14 was deficient or otherwise prejudiced his case. Nor has Defendant shown that his sentence
15 was imposed in violation of the law or that the court lacked jurisdiction to impose the
16 sentence. As a result, Defendant is unable to satisfy the Supreme Court’s standard in
17 Strickland for ineffective assistance of counsel.
18 CERTIFICATE OF APPEALABILITY
19 Pursuant to Rule 11 of the Rules Governing § 2254 Cases, a district court “must
20 issue or deny a certificate of appealability when it enters a final order adverse to the
21 applicant” in § 2255 cases such as this. 28 U.S.C. § 2254, Rule 11(a). A habeas petitioner
22 may not appeal the denial of a § 2255 habeas petition unless he obtains a certificate of
23 appealability from a district or circuit judge. See 28 U.S.C. § 2253(c)(1)(B); see also
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1 In its opposition to Defendant’s motion, the Government points out that there is a mistake
27 in the bond hearing transcript and 135 meant to state 235. (Doc. No. 134 at 10). Regardless
of the transcript’s typographical error, the Government clearly mentioned in Defendant’s
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1 || United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts
2 ||retain authority to issue certificates of appealability under AEDPA). A certificate of
3 || appealability is authorized “if the applicant has made a substantial showing of the denial
4 a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this threshold showing, a
5 || petitioner must show that: (1) the issues are debatable among jurists of reason, (2) that a
6 || court could resolve the issues in a different manner, or (3) that the questions are adequate
7 || to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1025-
8 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 (2000); Barefoot v. Estelle, 463
9 880 (1983)).
10 Based on this Court’s review of the record, the issues presented are not debatable
11 ||among jurists of reason and no issues could be resolved in a different manner. This Court
12 || further finds that no questions are adequate for further proceedings. Therefore, Defendant
13 not entitled to a certificate of appealability.
14 CONCLUSION
15 For all the reasons discussed above, IT IS HEREBY ORDERED:
16 1. Defendant’s motion to vacate, set aside, or correct sentence pursuant to 28
17 || U.S.C. § 2255 is DENIED.
18 2. Defendant is denied a certificate of appealability.
19 IT IS SO ORDERED.
20 || DATED: January 18, 2024
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73 JQHN A. HOUSTON
YNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10088909. Public record. Not legal advice.