Mendez-Quinones v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALGENIS MENDEZ-QUINONES,

v. Case No. 8:19-cr-20-VMC-AEP

8:20-cv-3034-VMC-AEP

UNITED STATES OF AMERICA.

_______________________________/

ORDER

This matter is before the Court on Algenis Mendez-

Quinones’ pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside,

or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 150), which

was filed on December 10, 2020. The United States of America

responded on February 24, 2021. (Civ. Doc. # 6). Mendez-

Quinones failed to file a reply by the deadline.

Mendez-Quinones instead filed a pro se Motion for

Summary Judgment (Civ. Doc. # 7) on March 5, 2021. The United

States has responded (Civ. Doc. # 9), and Mendez-Quinones has

replied. (Civ. Doc. # 12).

For the reasons that follow, both Motions are denied.

I. Background

On January 16, 2019, a federal grand jury in Tampa

returned an indictment against Mendez-Quinones and Jeremy

Johnson. (Crim. Doc. # 10). Mendez-Quinones was charged in

Count One with conspiring to distribute 500 grams or more of

cocaine and, in Count Six, with attempting to distribute and

possess with intent to distribute 500 grams or more of

cocaine. (Id.). On September 12, 2019, Mendez-Quinones

entered a guilty plea to Counts One and Six. (Crim. Doc. ##

91, 95, 96).

During the change of plea hearing, Mendez-Quinones was

placed under oath and acknowledged that he read and understood

the charges against him. (Crim. Doc. # 133 at 5-6). Mendez-

Quinones stated that he was fully satisfied with his counsel

Mr. Camareno’s advice and representation. (Id. at 11-12). The

Court summarized the charges against him, and Mendez-Quinones

acknowledged understanding them. (Id. at 9–10). Mendez-

Quinones acknowledged that he had a full and fair opportunity

to review all the facts and evidence against him to discuss

everything with his attorney, including his right to go to

trial. (Id. at 10). The Court explained the essential elements

of both charges and the potential penalties, and Mendez-

Quinones acknowledged understanding them. (Id. at 19–20).

The government also set forth the following factual

basis during the change of plea hearing:

On December 3rd and 4th of 2018, an undercover

officer purchased cocaine from Jeremy Johnson. The

first of these deals occurred just outside Jeremy

Johnson’s Tampa home, and the second deal was

inside the home. In all, the UC purchased

approximately 290 grams of cocaine for $9,500.

DEA executed a search warrant on Johnson’s

home on December 17, 2018. Inside they found

approximately 1 kilogram of cocaine in Johnson's

bedroom. They also found a Taurus pistol, which was

with two magazines and 17 rounds of 9-millimeter

ammunition, in the bathroom connected to the

bedroom.

Post-Miranda, Johnson admitted to possessing

the gun and the kilogram of cocaine. He explained

his supplier, whom he knew as “Fat,” had given him

the kilogram of cocaine on credit. Fat was later

identified as Algenis Mendez-Quinones. Johnson also

explained that the cocaine that the UC had

purchased came from Mendez-Quinones.

Johnson then placed a controlled recorded

telephone call to Mendez-Quinones. He ask[ed]

Mendez-Quinones if the cocaine he had just received

was the same as the cocaine that Mendez-Quinones

had given him before. Mendez-Quinones stated that

it was always the same stuff, it was always Ace of

Spades or Aces Wild, referencing the spade mark on

the kilogram of cocaine in Johnson’s home.

In a later call Johnson arranged to return the

cocaine to Mendez-Quinones, explaining that the

customer he had lined up for the sale would not be

purchasing.

Mendez-Quinones and Johnson met at a Lowe’s

parking lot in Tampa. Johnson carried a sham brick

of cocaine with him to the meeting, which was

similar in size and weight to the cocaine that

Johnson had received from Mendez-Quinones. Johnson

got into Mendez-Quinones’ car and the two discussed

Mendez-Quinones’ options for distributing the

cocaine, and Johnson gave Mendez-Quinones the sham

brick.

(Id. at 20-22).

Mendez-Quinones then stipulated to the majority of these

facts. (Id. at 22-24). His counsel clarified that Mendez-

Quinones had no firsthand knowledge of the two deals Johnson

conducted with the undercover and that he did not know of the

search warrant until after charges were brought against him.

(Id. at 22-23). As to the third paragraph of the factual basis

provided by the government, Mendez-Quinones’ counsel stated:

Paragraph 3, Judge, we have no dispute with that,

with the exception of the last sentence of

paragraph 3. At some point it will be made clear

that when Mr. Johnson wanted cocaine and Mr.

Quinones was not the actual distributor, Mr.

Quinones-Mendez would facilitate it or place the

order and then it would be delivered to some — some

location at which time Mr. Johnson would retrieve

it, but Mr. Algenis Mendez-Quinones was the one who

would facilit[ate] that process, make the call to

make sure the cocaine was delivered, it was never

actually delivered firsthand or by hand by Mr.

Mendez, but nonetheless he had full knowledge of

what Mr. Johnson’s intentions were and the quantity

and so forth.

(Id. at 23).

Mendez-Quinones had no objection to the factual basis as

to the recorded call between himself and Johnson. (Id.). His

only other objection to the factual basis was that Mendez-

Quinones did notice that the sham brick of cocaine “was not

the same weight” as the original brick of cocaine, but that

“nonetheless he did have an agreement with Mr. Johnson and he

facilitated and he did intend to retrieve it back at the time

he was arrested.” (Id. at 23-24).

The Court then asked Mendez-Quinones if he had “any other

disagreement with the facts as stated by the prosecutor,” to

which Mendez-Quinones responded “No, sir.” (Id. at 24). The

Court then asked “And as you know them, are those facts

true?,” to which Mendez-Quinones responded “Yes, sir.” (Id.).

On December 20, 2019, the Court sentenced Mendez-

Quinones to two concurrent terms of 60 months’ imprisonment.

(Crim. Doc. ## 119, 120). Mendez-Quinones appealed, his

attorney filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and the United States Court of Appeals for

the Eleventh Circuit affirmed the defendant’s judgement and

sentence after an independent examination of the record.

(Crim. Doc. # 142).

Now, Mendez-Quinones seeks post-conviction relief,

claiming ineffective assistance of counsel. (Civ. Doc. # 1).

II. Discussion

In the sole ground of his Section 2255 Motion, Mendez-

Quinones argues his counsel was ineffective because counsel

“did not inform [Mendez-Quinones] on the defense of

entrapment, prior to advising and assisting [him] into

pleading guilty to ‘knowing[ly] and intentionally’ committing

this offense. Thereby, denying [him] the opportunity to make

a knowing and intelligent choice on whether to plead guilty

or proceed to trial to test the entrapment defense.” (Id. at

4).

To prevail on a claim of ineffective assistance of

counsel, a petitioner must show that (1) her counsel’s

performance was deficient, and (2) the deficient performance

prejudiced her defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). To establish deficient performance, Mendez-

Quinones must demonstrate by a preponderance of the evidence

“that particular and identified acts or omissions of counsel

‘were outside the wide range of professionally competent

assistance.’” Chandler v. United States, 218 F.3d 1305, 1314

(11th Cir. 2000)(citations omitted). In other words, Mendez-

Quinones must show that “no competent counsel would have taken

the action that [his] counsel did take.” Id. at 1315. In

deciding whether an attorney’s performance was deficient,

courts are “highly deferential” and “indulge [the] strong

presumption that counsel’s performance was reasonable and

that counsel made all significant decisions in the exercise

of reasonable professional judgment.” Id. at 1314 (internal

quotation marks omitted).

“[C]ounsel need not always investigate before pursuing

or not pursuing a line of defense. Investigation (even a

nonexhaustive, preliminary investigation) is not required for

counsel reasonably to decline to investigate a line of defense

thoroughly.” Brownlee v. Haley, 306 F.3d 1043, 1060 (11th

Cir. 2002)(citation omitted). “The decision whether to

present a line of defense, or even to investigate it, ‘is a

matter of strategy and is not ineffective unless the

petitioner can prove that the chosen course, in itself, was

unreasonable.’” Id. (citation omitted); see also Stephens v.

United States, 14 F. Supp. 2d 1322, 1331 (N.D. Ga. 1998)(“A

decision not to investigate a potential defense, like other

litigation decisions, need only be reasonable to fall within

the range of professionally competent assistance.” (citation

omitted)).

To satisfy Strickland’s second prong — prejudice —

Mendez-Quinones must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. “To establish prejudice in the context of a

guilty plea, [Mendez-Quinones] must show that there is a

‘reasonable probability that, but for counsel’s

unprofessional errors,’ he would not have entered a guilty

plea and would have insisted on going to trial.” Solomon v.

United States, No. 1:10-CR-376-RWS-CCH, 2012 WL 1900138, at

*2 (N.D. Ga. May 2, 2012)(citation omitted), report and

recommendation adopted, No. 1:10-CR-0376-RWS, 2012 WL 1900136

(N.D. Ga. May 24, 2012).

While the Court finds that Mendez-Quinones has not

waived his ineffective assistance of counsel argument as it

relates to his decision to plead guilty and that his claim is

timely, his claim nevertheless fails on the merits. Mendez-

Quinones has not shown that counsel’s not investigating or

suggesting an entrapment defense was unreasonable or

deficient performance.

“A successful entrapment defense requires proof of two

elements: (1) government inducement of the crime, and (2)

lack of predisposition on the part of the defendant.” Rolon

v. United States, No. 09-20710-CR, 2015 WL 13898763, at *15

(S.D. Fla. June 15, 2015)(citing Brown v. United States, 43

F.3d 618, 623 (11th Cir. 1995)), report and recommendation

adopted, No. 09-20710-CR, 2015 WL 13898764 (S.D. Fla. Aug.

31, 2015). “In order to show government inducement, the

defendant must show more than that the agent simply sought

out or initiated contact with the defendant and proposed an

illicit transaction.” Id. “Rather, the defendant must show

that ‘opportunity plus something like excessive pressure or

manipulation of a non-criminal motive.’” Id. (quoting Brown,

43 F.3d at 623). “Without some element of ‘excessive pressure

or manipulation,’ there is no government inducement, and thus

no entrapment.” Id. (citation omitted).

“As entrapment is an affirmative defense, the defendant

bears the initial burden of producing evidence that is

sufficient to raise a jury issue on the question of whether

the government’s conduct created a substantial risk that the

offense would be committed by a person other than one ready

to commit it.” Id. at *16 (citation omitted). “Only if the

defendant provides such evidence does the burden then shift

to the government to prove beyond a reasonable doubt that the

defendant was predisposed to commit the offense.” Id.

As counsel explains in his affidavit, “from a legal

perspective, there was no evidence to support unlawful

inducement or enticement since the controlled phone

call/messages with [] Mendez-Quinones did not rise to that

level.” (Civ. Doc. # 6-1 at 1). In short, counsel did not

pursue the defense of entrapment because “there was no

evidence or a good faith basis to support entrapment as a

defense.” (Id.). Indeed, it appears that an entrapment

defense would not be viable given the evidence of Mendez-

Quinones’ prior drug distribution with Johnson and his

willingness to meet with Johnson to accept the cocaine.

As stated in the government’s factual basis, to which

Mendez-Quinones stipulated in relevant part under oath,

Mendez-Quinones was the supplier of the kilogram of cocaine

found at Johnson’s home, which was why Johnson called Mendez-

Quinones about returning the cocaine to Mendez-Quinones.

(Crim. Doc. # 133 at 21). Additionally, during a recorded

call with Johnson, Mendez-Quinones confirmed to Johnson that

the kilogram of cocaine at issue was the same type of cocaine

that Mendez-Quinones had previously supplied to Johnson.

(Id.). True, Mendez-Quinones’ counsel specified that Mendez-

Quinones was not always the actual distributor of Johnson’s

cocaine, but sometimes was merely a facilitator of sales of

cocaine to Johnson. (Id. at 23). Nevertheless, Mendez-

Quinones never challenged that he was involved in prior

cocaine transactions with Johnson before the crimes in this

case. (Id.). Although Johnson initiated the phone call with

Mendez-Quinones at the government’s behest, there is no

evidence of excessive pressure or manipulation placed on

Mendez-Quinones in the call or transaction at issue.

Thus, Mendez-Quinones was not unlawfully induced, and he

was predisposed to engage in the criminal activity with which

he was charged. See Solomon v. United States, No. 1:10-CR-

376-RWS-CCH, 2012 WL 1900138, at *3 (N.D. Ga. May 2,

2012)(“[T]he reason the undercover agents approached Movant

is because they previously had observed Movant engaging in

the same illicit activity on several other occasions.

Moreover, when the undercover agents first approached Movant

to protect them during their drug deals, Movant volunteered

a price that he would accept for his protection, and

negotiated down his fee when the agents did not want to pay

that price. Finally, when he was contacted by an undercover

agent prior to each deal, on all four occasions Movant

immediately agreed to participate. Movant, therefore, also

has failed to demonstrate he was not predisposed to engage in

such criminal activity.” (citations omitted)), report and

recommendation adopted, No. 1:10-CR-0376-RWS, 2012 WL 1900136

(N.D. Ga. May 24, 2012). Thus, counsel was not ineffective

for not suggesting or pursuing an entrapment defense, which

would lack merit in this case. See Card v. Dugger, 911 F.2d

1494, 1520 (11th Cir. 1990)(“Counsel cannot be labeled

ineffective for failing to raise issues which have no

merit.”); see also Brownlee, 306 F.3d at 1060 (“[C]ounsel

need not always investigate before pursuing or not pursuing

a line of defense. Investigation (even a nonexhaustive,

preliminary investigation) is not required for counsel

reasonably to decline to investigate a line of defense

thoroughly.” (citation omitted)).

Additionally, as the facts would not support an

entrapment defense, Mendez-Quinones cannot establish that he

was prejudiced by the failure to investigate the entrapment

defense. See Solomon, 2012 WL 1900138, at *4 (“Because the

facts do not support an entrapment defense, Movant cannot

demonstrate that he was prejudiced by any failure by counsel

to investigate such a defense — i.e., that there is a

reasonable probability that, but for counsel’s failure to

investigate an entrapment defense, Movant would not have

pleaded guilty and would have insisted in going to trial. As

such, Movant’s claim for ineffective assistance of counsel,

and that his plea was involuntary as a result, must fail.”).

Therefore, Mendez-Quinones’s Section 2255 Motion is denied.

Mendez-Quinones’ Motion for Summary Judgment is likewise

denied. Mendez-Quinones’ affidavits (Civ. Doc. # 2-1; Civ.

Doc. # 7-1) do not support that summary judgment should be

entered in his favor on his claim of ineffective assistance

of counsel because they attempt to contradict Mendez-

Quinones’ previous statements under oath at his change of

plea hearing. See Winthrop-Redin v. United States, 767 F.3d

1210, 1217 (11th Cir. 2014)(“[B]ecause Winthrop–Redin made

statements under oath at a plea colloquy, ‘he bears a heavy

burden to show his statements were false.’” (citation

omitted)); see also Patel v. United States, 252 F. App’x 970,

975 (11th Cir. 2007)(“There is a strong presumption that

statements made during the plea colloquy are true.

Consequently, a defendant bears a heavy burden to show that

his statements under oath were false.” (citations omitted)).

For example, although Mendez-Quinones acknowledged under

oath that the factual basis against him (to the extent not

objected to by counsel) was true at his change of plea hearing

(Crim. Doc. # 133 at 24), he avers in his affidavit that he

“did not, at any time prior to December 17, 2018, give or

sale [sic] Jeremey Johnson any cocaine.” (Civ. Doc. # 7-1 at

2). He likewise avers that he “did not have anything to do

with Jeremy Johnson’s possession of the kilogram of cocaine”

(Civ. Doc. # 2-1 at 1), in contradiction of his stipulation

under oath that he had given the kilogram of cocaine to

Johnson on credit. (Crim. Doc. # 133 at 20-22, 24). Mendez-

Quinones has not satisfied the heavy burden of showing that

his statements at his change of plea hearing were false.

Regardless, even if his affidavits were taken as true,

Mendez-Quinones’ affidavits are insufficient to suggest that

an entrapment defense was viable. Indeed, at most, Mendez-

Quinones avers that “If it weren’t for Jeremy Johnson’s

repeated calls to lure me to Lowes, I would not have left my

home with the intent to commit a drug trafficking offense.”

(Civ. Doc. # 7-1 at 2). This evidence does not support that

Mendez-Quinones was unlawfully induced, such that his counsel

should have raised the entrapment defense with him. See Rolon,

2015 WL 13898763, at *15 (“In order to show government

inducement, the defendant must show more than that the agent

simply sought out or initiated contact with the defendant and

proposed an illicit transaction.”). Therefore, summary

judgment in Mendez-Quinones’ favor is inappropriate.

In short, the record before the Court establishes that

Mendez-Quinones has failed to prove his claim of ineffective

assistance of counsel.

III. Evidentiary Hearing

As the Court was able to readily determine that the claim

lacks merit, no evidentiary hearing is required. See 28 U.S.C.

§ 2255(b) (stating that an evidentiary hearing is not

necessary if “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief”); see also Hernandez v. United States, 778 F.3d 1230,

1232–33 (11th Cir. 2015)(“To establish that he is entitled to

an evidentiary hearing, Hernandez had to allege facts that

would prove both that his counsel performed deficiently and

that he was prejudiced by his counsel’s deficient

performance.”).

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mendez-Quinones has failed to make a

substantial showing of the denial of a constitutional right

as required by 28 U.S.C. § 2253(c)(2). Nor will the Court

authorize Mendez-Quinones to proceed on appeal in forma

pauperis because such an appeal would not be taken in good

faith. See 28 U.S.C. § 1915(a)(3). Mendez-Quinones shall be

required to pay the full amount of the appellate filing fee

pursuant to Section 1915(b)(1) and (2).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Algenis Mendez-Quinones’ pro se 28 U.S.C. § 2255 Motion

to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1;

Crim. Doc. # 150) is DENIED. His Motion for Summary Judgment

(Civ. Doc. # 7) is DENIED. The Clerk is directed to enter

judgment for the United States of America and to close this

case,

DONE and ORDERED in Chambers in Tampa, Florida, this

12th day of May, 2021.

fase Henenby (rah

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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