Campa v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

HERMENEGILDO NEVAREZ CAMPA,

Petitioner,

v. Case No.: 3:17-cv-1264-J-32JBT

3:15-cr-53-J-32JBT

UNITED STATES OF AMERICA,

Respondent.

ORDER

This case is before the Court on Petitioner Hermenegildo Nevarez

Campa’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence. (Civ. Doc. 1).1 Petitioner pleaded guilty to one count of child sex

trafficking, in violation of 18 U.S.C. § 1591. He challenges his conviction and

sentence based on the alleged ineffectiveness of counsel and a claim of

sentencing error. The United States has responded in opposition. (Civ. Doc. 6).

Petitioner filed a reply (Civ. Doc. 9) and a notice (Civ. Doc. 10).

Pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings in

the United States District Courts (“§ 2255 Rule(s)”), the Court ordered that the

1 Citations to the record in the underlying criminal case, United States vs.

Hermenegildo Nevarez Campa, No. 3:15-cr-33-J-32JBT, will be denoted “Crim. Doc.

__.” Citations to the record in the civil § 2255 case, No. 3:16-cv-1252-J-32JBT, will be

denoted “Civ. Doc. __.”

record be expanded to include additional information about Ground One, in

which Petitioner alleges that counsel failed to advise him about his appeal

rights. (Civ. Doc. 11). The Court also ordered the United States to file a

supplemental response regarding Grounds Two through Five of the § 2255

Motion. (Civ. Doc. 15). The record has since been expanded (Civ. Doc. 12), and

the parties have filed supplemental briefs. (Civ. Doc. 14, Petitioner’s Response

to Expanded Record; Civ. Doc. 16, United States’ Supplemental Response).

Under § 2255 Rule 8(a), the Court has determined that an evidentiary

hearing is not necessary to decide the motion. See Rosin v. United States, 786

F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not

required when the petitioner asserts allegations that are affirmatively

contradicted by the record or patently frivolous, or if in assuming that the facts

he alleges are true, he still would not be entitled to any relief). For the reasons

set forth below, Petitioner’s § 2255 Motion is due to be denied.

I. Background

On April 16, 2015, a grand jury indicted Petitioner on two counts of child

sex trafficking, in violation of 18 U.S.C. § 1591. (Crim. Doc. 14, Indictment).

Count One charged Petitioner with sex trafficking of a minor under the age of

14 years, which carried a mandatory minimum sentence of 15 years in prison.

18 U.S.C. § 1591(b)(1). Count Two charged Petitioner with sex trafficking of a

minor who was at least 14 years old, which carried a mandatory minimum

sentence of 10 years in prison. Id., § 1591(b)(2).

On December 21, 2015, Petitioner pleaded guilty to Count Two of the

indictment pursuant to a written plea agreement. (Crim. Doc. 38, Plea

Agreement; see also Crim. Doc. 72, Plea Transcript). Petitioner admitted that

he paid A.B., a 15-year-old girl, for sex after he saw her advertisements on

Backpage.com. (Crim. Doc. 38 at 21–24). As part of the plea agreement,

Petitioner waived the right to appeal his sentence except under four

circumstances not relevant here. (Id. at 15–16). In exchange for his guilty plea,

the United States agreed (among other things) to dismiss Count One of the

indictment and to consider moving for a substantial assistance reduction based

on Petitioner’s cooperation. (Id. at 3, 4–5). The Magistrate Judge who presided

over the plea colloquy reported that “[a]fter cautioning and examining

Defendant under oath concerning each of the subjects mentioned in Rule 11, I

determined that the guilty plea was knowledgeable and voluntary, and that the

offense charged is supported by an independent basis in fact containing each of

the essential elements of such offense.” (Crim. Doc. 39).2 The Court accepted

Petitioner’s guilty plea and adjudicated him accordingly. (Crim. Doc. 41).

2 Petitioner, who was born in Mexico, had the plea agreement and change-of-plea

proceedings translated into Spanish. (Crim. Doc. 72 at 8). In addition, Petitioner

stated that he understands “about 80 percent” of English. (Id.).

Petitioner’s counsel, Jose Rodriguez, moved five times to continue the

sentencing hearing, explaining in four of the motions that Petitioner was

cooperating with law enforcement and was being evaluated for a substantial

assistance reduction. (Crim. Docs. 44, 47, 58, 61). Counsel also moved for a

downward variance under 18 U.S.C. § 3553(a) and a downward departure under

U.S.S.G. § 5K2.10. (Crim. Doc. 45).

Ultimately, the government did not move for a substantial assistance

reduction, and the sentencing hearing went forward on May 25, 2017. (Crim.

Doc. 70, Sentencing Transcript). According to the Presentence Investigation

Report (PSR), Petitioner’s advisory sentencing guidelines range was 135 to 168

months in prison, based on a total offense level of 33 and a Criminal History

Category of I. (Crim. Doc. 52, PSR at ¶ 80). The Court accepted the guidelines

calculation but varied 10 months below the guidelines range, sentencing

Petitioner to a term of 125 months in prison (five months above the mandatory

minimum). (Crim. Doc. 70 at 71; Crim. Doc. 66, Judgment).

Petitioner did not appeal the conviction and sentence. This § 2255 Motion

followed.

II. Discussion

Under 28 U.S.C. § 2255, a person in federal custody may move to vacate,

set aside, or correct his sentence. Section 2255 authorizes a district court to

grant relief on four grounds: (1) the sentence was imposed in violation of the

Constitution or laws of the United States; (2) the court lacked jurisdiction to

impose the sentence; (3) the sentence exceeds the maximum authorized by law;

or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C § 2255(a).

Only jurisdictional claims, constitutional claims, and claims of error that are so

fundamental as to cause a complete miscarriage of justice will warrant relief

through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86

(1979); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).

“[A] collateral attack is the preferred vehicle for an ineffective-assistance

claim.” United States v. Padgett, 917 F.3d 1312, 1318 (11th Cir. 2019).

To establish ineffective assistance of counsel, a § 2255 petitioner must

show both: (1) that his counsel’s performance was constitutionally deficient, and

(2) that counsel’s deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Martin v. United States, 949 F.3d 662,

667 (11th Cir. 2020). In determining whether counsel was deficient, “[t]he

standard for effective assistance of counsel is reasonableness, not perfection.”

Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466

U.S. at 687). “In the light of the ‘strong presumption’ that counsel's actions [fell]

within the wide range of constitutionally adequate assistance, a movant ‘must

establish that no competent counsel would have taken the [challenged] action.’”

Khan v. United States, 928 F.3d 1264, 1272 (11th Cir.) (quoting Chandler v.

United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)), cert.

dismissed, 140 S. Ct. 339 (2019). To demonstrate prejudice, the petitioner must

show a reasonable likelihood that the result of the proceeding would have been

different but for counsel’s error. Martin, 949 F.3d at 667 (citing Padilla v.

Kentucky, 559 U.S. 356, 366 (2010)). The Court considers the totality of the

evidence in determining whether a petitioner has established deficient

performance and prejudice. Strickland, 466 U.S. at 695. However, because both

prongs are necessary, “there is no reason for a court… to approach the inquiry

in the same order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Id. at 697.

A. Ground One

Petitioner alleges that trial counsel “never discusse[d] [his] appeal rights

in any way.” (Civ. Doc. 1 at 4). According to Petitioner, he “was going to appeal

[his] case” but his lawyer advised him he was not permitted to do so. Petitioner

states that he would like to appeal his conviction and sentence. He believes

there were “a lot of errors” in his case and that there were cases worse than his

in which the defendant received a lower sentence. Petitioner does not allege in

the § 2255 Motion that counsel ignored a direct instruction to file a notice of

appeal. Rather, Petitioner alleges a failure to consult.3

3 Petitioner claims for the first time in his Reply brief that counsel ignored a

specific instruction to file a notice of appeal. (Civ. Doc. 9 at 1). However, a claim that

counsel failed to file a requested notice of appeal is different from a claim that counsel

failed to adequately consult the defendant. See Hurtado v. United States, 808 F. App’x

The United States responds that Petitioner’s claim lacks merit. It argues

that Petitioner’s allegation that counsel failed to discuss his appeal rights “in

any way” is contradicted by his other allegation that counsel advised him he

was not permitted to appeal his sentence, which implies that he and counsel

discussed an appeal. (See Civ. Doc. 6 at 7). The United States also argues that

Petitioner’s claim is refuted by trial counsel’s affidavit, which the government

attached to its response. (Civ. Doc. 6-1, Affidavit of Jose Rodriguez).

In the affidavit, Mr. Rodriguez states that he recalls “the events that are

raised in Mr. Campa’s 2255 motion.” (Id. at ¶ 1). He avers:

3. I was retained in this matter on April 22, 2015.

4. During my representation, I spoke directly to Mr. Campa in

Spanish , as I am fluent in Spanish, about his discovery, the

evidence presented against him by the Government, the

procedure [sic] of the case, sentencing options, mandatory

minimums, substantial assistance and appeals. After reviewing

his discovery, we discussed his options to go to trial, enter a plea

with the benefit of a plea agreement or to plead guilty open to

the court.

5. I further entered into negotiations on behalf of Mr. Campa and

at his request. Prior to his plea, he maintained he had no desire

to cooperate with the Government. The decision by Mr. Campa

to cooperate came shortly after the entry of his plea.

798, 802 (11th Cir. 2020) (“Inadequate advice regarding the right to appeal is a

separate ground upon which a counsel can be found ineffective.” (citing Roe v. Flores-

Ortega, 528 U.S. 470, 479–80 (2000))). New claims raised for the first time in a reply

brief are deemed waived. Oliveiri v. United States, 717 F. App’x 966, 967 (11th Cir.

2018) (citations omitted). Moreover, the record refutes this claim, as discussed below.

6. I procured a plea agreement from the Government and explained

directly and in Spanish to Mr. Campa each and every term of the

plea agreement, the mandatory minimum terms of incarceration

applicable and the appellate waiver found in the plea agreement.

During that consultation, I discussed with Mr. Campa his right

to appeal and also, if he entered into the plea agreement and

signed it, he would waive his right to appeal except for the

exceptions stated therein.

7. Based on our conversation, the mandatory minimum nature of

the sentence on one or both of the charges and considering my

initial estimated guideline calculations (as I explained that I

can only estimate this calculation and, not accounting for the

multiple count adjustment adding two levels) which was a range

of 108-135 months – Level 31, Mr. Campa accepted the plea

agreement. He did so after being explained that the Court would

not be able to go under the mandatory minimum of 10 years in

this case even though the low end was 108 months. At that point,

substantial assistance was not a factor as Mr. Campa did not

agree to cooperate until after his plea. He did know and

understand at that time the lowest sentence he could receive was

the 10 year mandatory minimum but, per the advisory

guidelines, it could be higher. Again, he was informed at that

time that he was waiving his right to appeal but he did in fact

agree to plea, sign the agreement and waive his right to appeal.

8. At the plea hearing, Mr. Campa was further questioned about his

plea waiver by this Honorable Court and this Honorable Court

explained to Mr. Campa that he was waiving his right to appeal.

9. At sentencing, this Honorable Court sentenced him to 125

months granting a downward variance based on the Defense’s

Motion to Vary Sentence Pursuant to 18 U.S.C. § 3553(a) Factors

and Downward Departure Pursuant to § 5K2.10 and argument.

Post sentencing, counsel reviewed the sentence with Mr. Campa

and explained the time for appeal but that he agreed to an

appeal waiver in his plea agreement.

10. Based on that conversation, Mr. Campa advised that he did not

wish to appeal his sentence.

11. Mr. Campa alleges on p. 5, ¶(b) [Civ. Doc. 1 at 4, ¶(b)] that

counsel “never discussed his appeal rights in any way” and again

on p. 6, ¶ (70) [Civ. Doc. 1 at 5, ¶(c)(7)] of his 2255 Motion;

however, on p. 5 ¶(a), Lines 5-7 [Civ. Doc. 1 at 4, ¶(a)] he

contradicts these two allegations by alleging “I was going to

appeal my case but my lawyer told me that he (illegible) do not

permetd to appeal my conviction or my sentence.” He states we

did have a discussion about his right to appeal and his appeal

waiver.

(Civ. Doc. 6-1 at ¶¶ 3–11) (emphases in original).

Recognizing that contested factual allegations cannot be resolved based

on affidavits alone, the Court instructed Mr. Rodriguez to expand the record

pursuant to § 2255 Rule 7 and gave Petitioner an opportunity to respond to the

materials. (Civ. Doc. 11). Mr. Rodriguez submitted a copy of his calendar for

May 31, 2017 (six days after the sentencing hearing), which showed that Mr.

Rodriguez had a jail telephone conference with Petitioner. (Civ. Doc. 12-4). Mr.

Rodriguez explains that the purpose of the conference was to discuss appeal

issues. (Civ. Doc. 12 at 1). Mr. Rodriguez also submitted a copy of the closing

letter that he sent Petitioner on the very same day. (Civ. Doc. 12-1 (letter in

original Spanish); Civ. Doc. 12-2 (English translation)).

The Court originally instructed Petitioner to respond to the materials by

December 16, 2019, which he did not do because, as he explained later, there

was a problem with the mail at his prison. (Civ. Doc. 14 at 2). So, on February

18, 2020, the Court enclosed a copy of the materials for Petitioner’s review and

gave him a second opportunity to respond, which he did. (Civ. Doc. 13; Civ. Doc.

13-1). Petitioner generally states that he “den[ies] all materials submitted by

Mr. Rodriguez.” (See Civ. Doc. 14 at 2). However, Petitioner mainly raises other

concerns, including that he did not receive credit for information he gave to law

enforcement, that counsel did not explain the plea agreement, and that his

sentence exceeded the sentence that Mr. Rodriguez estimated.4

The Supreme Court has “long held that a lawyer who disregards specific

instructions from the defendant to file a notice of appeal acts in a manner that

is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)

(citing Rodriguez v. United States, 395 U.S. 327 (1969)). “[W]hen counsel fails

to file a requested appeal, a defendant is entitled to resentencing and to an

appeal without showing that his appeal would likely have had merit.” Peguero

v. United States, 526 U.S. 23, 28 (1999) (citing Rodriguez, 395 U.S. at 329-30).

But “[a]t the other end of the spectrum, a defendant who explicitly tells his

attorney not to file an appeal plainly cannot later complain that, by following

his instructions, his counsel performed deficiently.” Flores-Ortega, 528 U.S. at

477 (emphasis in original) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)).

“[B]etween those poles” is the situation “when the defendant has not

clearly conveyed his wishes one way or the other.” Id. In that scenario, the first

4 To the extent Petitioner raises new claims in response to the expanded record

(Civ. Doc. 14), they are not properly before the Court because Petitioner must seek

leave under Fed. R. Civ. P. 15 if he wishes to amend the § 2255 motion. Petitioner has

not done so. In any event, any new claims would be untimely under § 2255(f).

question is whether counsel consulted the defendant about an appeal, and if so,

whether counsel followed the defendant’s wishes. Id. at 478. The Supreme Court

defines the term “consult” to mean “advising the defendant about the

advantages and disadvantages of taking an appeal, and making a reasonable

effort to discover the defendant’s wishes.” Id. If counsel did not consult the

defendant, “the court must in turn ask a second, and subsidiary question:

whether counsel’s failure to consult with the defendant itself constitutes

deficient performance.” Id. The Supreme Court “reject[ed] a bright-line rule that

counsel must always consult with the defendant regarding an appeal.” Id. at

480. Instead,

counsel has a constitutionally imposed duty to consult with the

defendant about an appeal when there is reason to think either (1)

that a rational defendant would want to appeal (for example,

because there are nonfrivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to counsel that he

was interested in appealing. In making this determination, courts

must take into account all the information counsel knew or should

have known.

Id. (citing Strickland, 466 U.S. at 690). If counsel performed deficiently by

failing to consult the petitioner, the petitioner must further establish prejudice.

To do so, he “must show that ‘there is a reasonable probability that, but for

counsel’s deficient failure to consult with him about an appeal, he would have

timely appealed.’” Thompson v. United States, 504 F.3d 1203, 1207 (11th Cir.

2007) (quoting Flores-Ortega, 528 U.S. at 484).

As a threshold matter, Petitioner’s allegations are insufficient to support

vacating the judgment. To be entitled to an evidentiary hearing, let alone

habeas relief, a § 2255 movant must allege “reasonably specific, non-conclusory

facts that, if true, would entitle him to relief.” Aron v. United States, 291 F.3d

708, 715 n.6 (11th Cir. 2002). “However, a district court need not hold a hearing

if the allegations are ‘patently frivolous,’ ‘based upon unsupported

generalizations,’ or ‘affirmatively contradicted by the record.’” Winthrop-Redin

v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (quoting Holmes v.

United States, 876 F.2d 1545, 1553 (11th Cir. 1989)).

Petitioner does not allege in the § 2255 Motion, and the record does not

reflect, that a rational defendant would have wanted to appeal. See Flores-

Ortega, 528 U.S. at 480. Petitioner pleaded guilty and waived the right to

appeal, which by itself “reduces the scope of potentially appealable issues.” Id.5

Petitioner obtained the benefit of an agreement that allowed him to plead guilty

5 Petitioner’s appeal-waiver contained four exceptions, but none of them applied:

(1) his sentence did not exceed the guidelines range as determined by the Court; (2)

his sentence did not exceed the statutory maximum; (3) his sentence, which was 10

months below the guidelines range and only five months above the mandatory

minimum, did not violate the Eighth Amendment; and (4) the government did not

exercise its right to appeal the sentence. (See Crim. Doc. 38 at 15–16). Nor would

Petitioner have had a plausible argument that the appeal waiver was not knowing and

voluntary. At the change-of-plea colloquy, Petitioner stated under oath that he

understood the entire plea agreement, which had been translated for him into Spanish

and explained by his attorney. (Crim. Doc. 72 at 8, 22–24, 48–50). The Court, speaking

to Petitioner through an interpreter, specifically asked Petitioner about the appeal-

waiver, and Petitioner affirmed that he knowingly and voluntarily accepted it. (Id. at

29–31).

only to the charge with the 10-year mandatory minimum sentence (Count Two,

sex trafficking of a minor over age 14) in exchange for the government

dismissing the charge with the 15-year mandatory minimum (Count One, sex

trafficking of a minor under age 14). Petitioner received a sentence that was 10

months below the guidelines range and only five months above the 10-year

mandatory minimum (which he acknowledged he was aware of when he pleaded

guilty). Thus, no rational defendant would have wanted to file an appeal.

As for whether “this particular defendant reasonably demonstrated to

counsel that he was interested in appealing,” Flores-Ortega, 528 U.S. at 480,

Petitioner’s meager allegations are vague. He alleges that he “was going to

appeal” his sentence and that he believes there were errors in his case, but he

does not describe what he communicated to counsel or when. However, the

Court assumes for the sake of argument that Petitioner reasonably expressed

an interest in appealing (at the sentencing hearing, Petitioner asked the Court

to repeat how much time he had to appeal (Crim. Doc. 70 at 73)). Nevertheless,

Petitioner does not elaborate on the content or timing of his discussions with

counsel. Therefore, even assuming counsel was required to consult Petitioner,

it is impossible to discern whether such consultation was inadequate. See Diaz

v. United States, 799 F. App’x 685, 690 (11th Cir. 2020) (affirming district

court’s denial of a failure-to-consult claim, without an evidentiary hearing,

where the petitioner did not present reasonably specific facts).

Moreover, even if Petitioner’s allegations are sufficient, the affidavits and

records on file contradict the claim. Mr. Rodriguez’s affidavit shows that

Petitioner advised him not to pursue an appeal after he and Petitioner

discussed the matter. (See Civ. Doc. 6-1 at ¶¶ 3–11). “Ordinarily, contested

factual issues in a § 2255 proceeding may not be determined based only on

affidavits.” Alvarez-Sanchez v. United States, 350 F. App’x 421, 423 (11th Cir.

2009) (emphasis added). However, “[w]here the affidavits are supported by

other evidence in the record the court may rely upon them.” Owens v. United

States, 551 F.2d 1053, 1054 (5th Cir. 1977).6 Such is the case here.

In his affidavit, Mr. Rodriguez states that he discussed the appeal waiver

with Petitioner while reviewing the plea agreement, and that Petitioner

understood and accepted the waiver. (Civ. Doc. 6-1 at ¶¶ 6, 7). During the

change-of-plea hearing, the Court specifically asked Petitioner about the appeal

waiver and he demonstrated that he knowingly and voluntarily accepted it.

(Crim. Doc. 72 at 29–31). At sentencing, the Court advised Petitioner of his right

to appeal and Petitioner asked the Court to repeat how much time he had to do

so. (Crim. Doc. 70 at 72–73). The Court advised Mr. Rodriguez “to stay with Mr.

Campa through the discussion” about an appeal and “[i]f he wishes to file a

6 Decisions issued by the former Fifth Circuit Court of Appeals before the close of

business on September 30, 1981, are binding in the Eleventh Circuit. Bonner v. City

of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

notice of appeal … to do so on a timely basis.” (Id. at 73). Mr. Rodriguez affirmed

that he was familiar with the consultation process and that he would

“absolutely do that.” (Id.). According to Mr. Rodriguez’s affidavit, “[p]ost

sentencing, counsel [1] reviewed the sentence with Mr. Campa and [2] explained

the time for appeal but [3] that he agreed to an appeal waiver in his plea

agreement.” (Civ. Doc. 6-1 at ¶ 9) (bracketed numbers added). “Based on that

conversation, Mr. Campa advised that he did not wish to appeal his sentence.”

(Id. at ¶ 10) (emphasis added).

Other evidence in the record supports Mr. Rodriguez’s affidavit. His

calendar shows that he had a telephone conference with Petitioner at 3:00 p.m.

on May 31, 2017 – six days after the sentencing hearing. (Civ. Doc. 12-4). Mr.

Rodriguez explains that this conference was “used to discuss post plea appeal

issues.” (Civ. Doc. 12 at 1). That very same day, Mr. Rodriguez sent a closing

letter to Petitioner. (Civ. Doc. 12-1; Civ. Doc. 12-2). The letter states:

Dear Mr. Campa,

Thank you for the trust given in allowing our office to represent you

in your case. We appreciate the opportunity to represent you and

we are ready to serve you again in the future.

If you have any questions, do not hesitate to contact our office.

(Civ. Doc. 12-2 (English translation)).

Although Petitioner generally “den[ies] all materials submitted by Mr.

Rodriguez” (Civ. Doc. 14 at 2), he does not offer any specific rebuttal, nor does

he point to any evidence that supports his unsubstantiated allegations. Notably,

in the closing letter Mr. Rodriguez invited Petitioner to contact his office if

Petitioner had any questions. If Petitioner wanted or expected Mr. Rodriguez to

file a notice of appeal, it would be reasonable to expect that he would have

contacted Mr. Rodriguez after receiving the letter. But Petitioner does not

allege, and the record does not indicate, that Petitioner made any effort to follow

up with Mr. Rodriguez about an appeal.

The surrounding circumstances also reinforce Mr. Rodriguez’s affidavit.

First, Petitioner pleaded guilty to Count Two, which “indicate[s] that the

defendant s[ought] an end to judicial proceedings.” Flores-Ortega, 528 U.S. at

480. Indeed, Mr. Rodriguez “entered into [plea] negotiations on behalf of Mr.

Campa and at his request.” (Civ. Doc. 6-1 at ¶ 5) (emphasis added). Second,

Petitioner knowingly and voluntarily waived the right to appeal his sentence as

part of the plea agreement. Although the waiver would not have relieved

counsel of the obligation to file a notice of appeal if Petitioner had instructed

him to do so, Garza v. Idaho, 139 S. Ct. 738, 746 (2019), the waiver is further

evidence that Petitioner decided not to pursue an appeal, Flores-Ortega, 528

U.S. at 480 (instructing courts to consider whether the defendant “waived some

or all appeal rights” in deciding whether counsel had a duty to consult). Third,

Petitioner received a favorable plea bargain and sentence, to which he did not

object at the conclusion of the sentencing hearing (other than to preserve the

sentencing arguments already on record). (Crim. Doc. 70 at 74).7

Mr. Rodriguez’s affidavit establishes that Petitioner advised him not to

pursue an appeal following a post-sentencing consultation. Other records on file

– including Mr. Rodriguez’s calendar and the closing letter – corroborate his

affidavit. “[A] defendant who explicitly tells his attorney not to file an appeal

plainly cannot later complain that, by following his instructions, his counsel

performed deficiently.” Flores-Ortega, 528 U.S. at 477 (emphasis in original)

(citation omitted). As such, relief on Ground One is due to be denied, and an

evidentiary hearing is not warranted.

B. Ground Two

Petitioner alleges that counsel gave ineffective assistance by failing to

pursue a substantial assistance reduction under Federal Rule of Criminal

Procedure 35(b). (Civ. Doc. 1 at 5). Petitioner claims his lawyer told him that he

would file a motion to reduce the sentence based on the information Petitioner

provided the government. Petitioner complains that he “got stuck with (125)

months without any further consideration.” (Id.).

7 The sentence was also within the guidelines range that counsel estimated for

Petitioner before he decided to plead guilty. (See Civ. Doc. 6-1 at ¶ 7).

Petitioner cannot establish deficient performance or prejudice. Only

“[u]pon the government’s motion” can a district court grant a substantial

assistance reduction. Fed. R. Crim. P. 35(b)(1), (2). Petitioner acknowledged

when he pleaded guilty that the government alone had discretion to decide

whether to move for a substantial assistance reduction, and that he could not

challenge the government’s decision. (Crim. Doc. 38 at 4–5; Crim. Doc. 72 at

27). Thus, Petitioner’s counsel could not have filed a Rule 35(b) motion nor could

he have compelled the government to do so. See United States v. Rothstein, 939

F.3d 1286, 1291–92 (11th Cir. 2019) (the government has a power, not a duty,

to move for a substantial assistance reduction, and its discretion in exercising

that power may be reviewed only for an unconstitutional motive) (citations

omitted). Counsel cannot be deemed ineffective for not filing a motion he lacked

the power to file. See Brewster, 913 F.3d at 1056 (“Defense counsel, of course,

need not make meritless motions or lodge futile objections.”).

Nor is it true that counsel did nothing to pursue a sentence reduction,

whether for substantial assistance or other reasons. Counsel filed five motions

to continue the sentencing hearing (each of which were granted), explaining in

four of them that Petitioner was working on providing substantial assistance.

(Crim. Docs. 44, 47, 58, 61). Counsel advised the Court that “Mr. Campa [was

cooperating] and being evaluated for substantial assistance,” and that “[t]he

defense is moving to continue this case to give Mr. Campa an opportunity to

perform substantial assistance.” (Crim. Doc. 44 at 1). Counsel also filed a

“Motion to Vary Sentence Pursuant to 18 U.S.C. § 3553(a) Factors and for

Downward Departure Pursuant to U.S.S.G. § 5K2.10.” (Crim. Doc. 45). On top

of other arguments for a lower sentence, counsel urged the Court that if the

government moved for a downward departure under U.S.S.G. § 5K1.1, it should

sentence Petitioner below the 10-year mandatory minimum because 10 years

was excessive based on the facts of the case. (Crim. Doc. 45 at 2, 9–11, 12–13).

Furthermore, counsel informed the Court at the sentencing hearing that

Petitioner had attempted to earn a substantial assistance reduction under

U.S.S.G. § 5K1.1, but that “[w]e haven’t been able to develop it.” (Crim. Doc. 70

at 63). Counsel advised the Court that Petitioner had given statements to the

FBI and had attempted to cooperate through family members. (Id.).

In the end, the government did not file a substantial assistance motion,

but it was not for lack of effort by counsel. The government explains:

Campa did not provide any assistance to the government after

sentencing. He only provided information prior to sentencing,

which was insufficient to qualify as substantial assistance. Prior to

his sentencing, Campa, Campa’s trial counsel, and the undersigned

met with federal law enforcement agents for a proffer with Campa

for him to attempt to cooperate and qualify for substantial

assistance. Campa was interested in becoming a confidential

informant (CI) for a federal law enforcement agency. However, none

of the information provided was able to be used by that law

enforcement agency and Campa could not be used as a CI due to

agency policy prohibiting the agency from working with a person

who had been arrested for or convicted of sex crimes involving

minors. Therefore, while he attempted to cooperate, as many

defendants do, he was ultimately unsuccessful, and his information

did not further any investigations. Campa’s attorney later reached

out to the undersigned about an arrest he believed was related to

Campa’s proffer. This was determined to be unrelated to Campa’s

information, as the arrest was the result of a state law enforcement

investigation unrelated to Campa’s proffer and not the result of the

federal law enforcement agency involved in the proffer with Campa.

Thus, his information did not qualify as substantial assistance and

there was no basis to pursue a Rule 35 motion.

(Civ. Doc. 16 at 5–6). Petitioner does not contest the government’s account.

Counsel did what he could to pursue a substantial assistance reduction

on Petitioner’s behalf. That counsel ultimately was unsuccessful does not prove

that he gave ineffective assistance. See Ward v. Hall, 592 F.3d 1144, 1164 (11th

Cir. 2010) (“We have long held that the fact that a particular defense was

unsuccessful does not prove ineffective assistance of counsel.” (citation

omitted)). Petitioner also fails to show a reasonable probability that, even had

counsel done more, his cooperation would have qualified as substantial

assistance and that the government would have filed such a motion. Therefore,

Petitioner has failed to show deficient performance or prejudice. Relief on this

ground is due to be denied.

C. Ground Three

Next, Petitioner alleges that counsel gave ineffective assistance at

sentencing by failing to apprise the Court of his efforts to cooperate with the

government. (Civ. Doc. 1 at 6). He also claims that, owing to “poor and

ineffective legal counsel,” the Court did not consider all of the § 3553(a) factors.

Citing Rita v. United States, 551 U.S. 338 (2007)8, and Gall v. United States,

552 U.S. 38 (2007)9, Petitioner asserts that the Court did not make an

“individualized assessment” that accounted for such factors as Petitioner’s wife

and children and the sentences imposed in similar cases.

The record refutes this claim. As noted above, trial counsel advised the

Court of Petitioner’s efforts to cooperate with the government. He filed four

motions to continue the sentencing hearing, in which counsel notified the Court

that Petitioner was attempting to provide substantial assistance. At the

sentencing hearing, counsel advised the Court that Petitioner had given

statements to the FBI and that his family had tried to cooperate with the

government, but they were unable to develop enough of a case for a substantial

assistance motion.

Additionally, counsel gave the Court a comprehensive § 3553(a)

presentation in which he urged the Court to vary below the guidelines range

8 In Rita, the Supreme Court held that appeals courts may apply a presumption

of reasonableness to a sentence that is within the properly-calculated guidelines

range, because “by the time an appeals court is considering a within-Guidelines

sentence on review, both the sentencing judge and the Sentencing Commission will

have reached the same conclusion as to the proper sentence in the particular case.”

551 U.S. at 347 (emphasis in original). However, “the sentencing court does not enjoy

the benefit of a legal presumption that the Guidelines sentence should apply.” Id. at

351 (citing United States v. Booker, 543 U.S. 220, 259–60 (2005)).

9 In Gall, the Supreme Court held that “extraordinary circumstances” are not

required to justify a sentence outside the guidelines range, and that the same abuse-

of-discretion standard governs an appellate court’s review of a sentence regardless of

whether the sentence is within or outside the guidelines range. 552 U.S. at 47, 51.

based on Petitioner’s history and characteristics and the facts of his case. In the

motion for a downward variance or departure, counsel explained how Petitioner

grew up in poverty and had a limited education, but came to the United States

to work and learned to speak English on the streets. (Crim. Doc. 45 at 4–5, 8–

9). Counsel stated that, by working construction jobs, Petitioner both supported

his family back in Mexico and provided a stable home for his wife and children

in Orlando, one of whom has Down Syndrome. (Id.). Counsel further argued

that the facts of the case warranted leniency because the victims presented

themselves as adults on Backpage.com and the offense did not involve violence.

(Id. at 5–13). Counsel argued that Petitioner’s lack of sophistication led him to

believe that the victims were in fact adults.

Counsel presented these arguments at the sentencing hearing as well

(Crim. Doc. 70 at 51–64), adding that this offense was “out-of-character” given

that Petitioner lacked any criminal history (id. at 56). Counsel gathered 18

letters from friends and family members in support of Petitioner, in addition to

presenting a statement from his wife. (Crim. Doc. 52 at 16–34; Crim. Doc. 70 at

59–62). The Court remarked that Petitioner had significant family and

community support. (Crim. Doc. 70 at 66).

As the Court prepared to announce the sentence, it reviewed the § 3553(a)

factors, including Petitioner’s history and characteristics, the applicable

guidelines and sentencing ranges, as well as the need for the sentence to reflect

just punishment, promote respect for the law, afford adequate deterrence, and

protect the public. (Id. at 65–71). Because a 10-year mandatory minimum

limited the Court’s discretion, and the Court was considering a near-mandatory

minimum sentence anyway (see id. at 68), the need to avoid unwarranted

sentencing disparities had less relevance. The Court ultimately varied 10

months below the guidelines range, sentencing Petitioner to a term of 125

months in prison (five months above the mandatory minimum).

Thus, the record refutes Petitioner’s allegations. Counsel apprised the

Court of such factors as Petitioner’s family circumstances and his efforts to

cooperate with the government. The case resulted in a below-guidelines

sentence close to the statutory minimum. Because counsel’s performance at

sentencing was neither deficient nor prejudicial, relief is due to be denied.

D. Ground Four

Petitioner alleges that the Court failed to weigh all of the § 3553(a) factors

before imposing sentence. (Civ. Doc. 1 at 8). He argues that the Court

overlooked “a factor under 18 U.S.C. [§] 3553(a) that may warrant a variance.”

(Id.). Petitioner suggests that the Court overlooked its ability to disagree with

the guidelines range on policy grounds. (Id.).

This claim is procedurally defaulted. A claim that the sentencing court

failed to consider the § 3553(a) factors, or that the court treated the guidelines

range as mandatory, is a challenge to the procedural reasonableness of the

sentence. See Gall, 552 U.S. at 51. However, a challenge to the sentence’s

procedural reasonableness is appropriate for direct appeal, not collateral

review. “Under the procedural default rule, a defendant generally must advance

an available challenge to a criminal conviction or sentence on direct appeal or

else the defendant is barred from presenting that claim in a § 2255 proceeding.”

McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (internal

quotation marks and citation omitted). Because Petitioner did not challenge the

reasonableness of his sentence on appeal, the claim is procedurally defaulted.

Petitioner has not demonstrated that he can overcome the default through a

showing of cause and prejudice or actual innocence.10

In any event, the sentencing record refutes this claim. The Court’s

explanation of the sentence reflects that it reviewed and considered the §

3553(a) factors. (Crim. Doc. 70 at 65–71). Nor did the Court treat the sentencing

guidelines as mandatory, plainly, because it varied 10 months below the

guidelines range. Therefore, this ground does not merit relief.

E. Ground Five

Finally, Petitioner alleges that his lawyer misled him into believing he

would receive a lower sentence if he cooperated with the government. (Civ. Doc.

10 Although Petitioner waived the right to appeal his sentence, “a waiver of appeal

provision in a plea agreement d[oes] not constitute ‘cause’ for failing to take a

direct appeal.” Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001).

1 at 11). Petitioner complains that he went “through the motions” of

interviewing with his lawyer and law enforcement agents, only to learn that he

“was disqualified because of [his] enhanced background.” (Id.). Presumably,

Petitioner is referring to his interest in working as a C.I. for a federal agency,

and learning that agency policy prohibited it from working with individuals

convicted of a sex crime involving a minor. (See Civ. Doc. 16 at 6). Petitioner

states that he provided “a lot of information” to his lawyer and the government,

and that his lawyer advised him he would get a sentence lower than 125 months

based on the information provided. (Civ. Doc. 1 at 11). Petitioner also complains

that the offense of conviction made him ineligible for “safety valve” relief.11

Petitioner does not describe when his lawyer advised him that his

sentence would be reduced if he assisted the government. Liberally construing

the claim, the Court interprets it as asserting that counsel so advised Petitioner

before he chose to plead guilty, such that the plea was not knowing and

voluntary.12 Nevertheless, the record refutes this claim.

Petitioner’s plea agreement stated that if he cooperated with the

government, the government would consider whether to move for a substantial

11 The “safety valve” statute, 18 U.S.C. § 3553(f) (2010), provided limited authority

for district courts to sentence certain defendants below the mandatory minimum. But

that authority extended only to defendants convicted of a controlled substance offense.

Petitioner was not charged with a drug offense, so § 3553(f) is not relevant.

12 If counsel led Petitioner to believe he would obtain a substantial assistance

reduction after he pleaded guilty, it is unclear how Petitioner was prejudiced.

assistance reduction. (Crim. Doc. 38 at 4–5). However, Petitioner acknowledged

that the government had sole discretion to decide whether his cooperation

qualified as substantial assistance. (Id. at 5). Petitioner agreed that if the

government chose not to file a substantial assistance motion, he could not

challenge that decision “by appeal, collateral attack, or otherwise.” (Id.).

Petitioner further stated at the plea colloquy, under oath, that he

understood the entire plea agreement, which had been interpreted for him.

(Crim. Doc. 72 at 8, 22–24, 30–31). Petitioner stated that he understood the

minimum and maximum penalties, that he understood his sentence could not

be predicted, and that his sentence could be harsher than expected. (Id. at 15–

16, 18–20). Petitioner affirmed that he was not pleading guilty based on any

promises, assurances, or understandings other than those contained in the plea

agreement. (Id. at 46-47). Notably, Petitioner specifically affirmed that nobody

had promised him a light sentence in exchange for his plea. (Id. at 47).

Regarding substantial assistance in particular, Petitioner acknowledged that

the decision whether to file a substantial assistance motion rested solely with

the government. (Id. at 27). Counsel for Petitioner and the government affirmed

as well that no assurances or promises had been made to Petitioner outside of

those in the plea agreement. (Id. at 47–48). Petitioner denied that anyone had

coached or instructed him to falsely answer the Court’s questions. (Id. at 49).

The record reflects that Petitioner pleaded guilty with no expectation he

would receive a light sentence or a substantial assistance reduction. “[T]he

representations of the defendant, his lawyer, and the prosecutor at [a plea]

hearing, as well as any findings made by the judge accepting the plea, constitute

a formidable barrier in any subsequent collateral proceedings.” Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977). Given that Petitioner’s admissions were

made under oath, “he bears a heavy burden to show his statements were

false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (per curiam).

Petitioner’s unsupported allegations do not meet that burden. As such, relief on

this claim is due to be denied.

IV. Conclusion

Having considered each of Petitioner’s claims, and finding that none

warrants relief under 28 U.S.C. § 2255, it is hereby ORDERED:

1. Petitioner Hermenegildo Nevarez Campa’s Motion Under 28 U.S.C. §

2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1) is

DENIED.

2. The Clerk shall enter judgment in favor of the United States and

against Petitioner, and close the file.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN

FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate

of appealability. A prisoner seeking a motion to vacate has no absolute

entitlement to appeal a district court’s denial of his motion. 28 U.S.C. §

22538(c)(1). Rather, a district court must first issue a certificate of appealability

(COA). Id. “A [COA] may issue... only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such

a showing, Petitioner “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong,”

Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-E] v. Cockrell, 537 U.S. 322, 335-36

(2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Petitioner has

not made the requisite showing in these circumstances. Because Petitioner is

not entitled to a certificate of appealability, he is not entitled to appeal in forma

pauperis.

DONE AND ORDERED at Jacksonville, Florida this 15th day of

January, 2021.

& Cimothug g.. Corrig on

TIMOTHY J. CORRIGAN

United States District Judge

28

Lc 19

C:

Counsel of record

Pro se petitioner