Ordonez Godoy v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 8:20-cv-1483-SDM-TGW

8:17-cr-591-SDM-TGW

SEGUNDO ORDONEZ GODOY

____________________________________/

ORDER

Ordonez Godoy moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and

challenges the validity of his conviction for conspiracy to possess with the intent to

distribute cocaine while aboard a vessel, for which offense he is imprisoned for

135 months. Both the conviction and the sentence accord with the plea agreement.

The United States admits that the motion to vacate is timely. (Doc. 6 at 2)

Nevertheless, the motion lacks merit.

FACTS1

On November 22, 2017, while on routine patrol, a Maritime Patrol Aircraft

spotted a Go-Fast-Vessel (“GFV”) approximately 260 nautical miles south from

Port Angel/Huatulco, Mexico. A U.S. Coast Guard Cutter moved to intercept and,

upon arriving on the scene, launched their Over-The-Horizon Vessel (“OTH”) with a

boarding team. Surveillance observed the GFV jettison a package. One of the lines

1 This summary of the facts derives from Ordonez Godoy’s plea agreement. (Doc. 36 in

17-cr-591)

tied to a jettisoned bale entangled in the propeller and caused the GFV to stop.

OTH boarding team found three defendants aboard the GFV.

Boarding team members observed suspicious packages in the open fish-hold as

well as in the water next to the GFV. Because the claimed government could neither

confirm nor deny the GFV’s nationality, the GFV was treated as without nationality

and subject to the United States’ jurisdiction. The boarding team conducted two

Narcotic Identification Kit Tests on both a package observed on the deck of the GFV

and one of the jettisoned packages. All four tests were positive for cocaine. The

Coast Guard recovered 19 total bales from the GFV. The substance inside the bales

tested positive for cocaine. In total, the bales weighed approximately 610 kilograms.

CLAIMS FOR RELIEF

Ordonez Godoy alleges that trial counsel rendered ineffective assistance at

sentencing by not advising the district court about his cooperation. Affording his

allegations a generous interpretation, Ordonez Godoy requests (1) a reduction in

sentence under Rule 35, Federal Rules of Criminal Procedure, and (2) re-sentencing

below the mandatory minimum under the “safety valve” provision in 18 U.S.C.

§ 3553(f). Ordonez Godoy is eligible for neither.

Ineffective Assistance of Counsel:

Ordonez Godoy claims ineffective assistance of counsel, a difficult claim to

sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.” Waters v. Thomas,

46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),

explains, Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective

assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland, first, the

defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690.

Ordonez Godoy must demonstrate that counsel’s alleged error prejudiced the

defense because “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect

on the judgment.” 466 U.S. at 691–92. To meet this burden, Ordonez Godoy must

show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Although the Strickland standard controls a claim that counsel was ineffective

for recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52 (1985), Agan

v. Singletary, 12 F.3d 1012 (11th Cir. 1994), the quantum of evidence needed to prove

both deficient performance and prejudice is different. “[C]ounsel owes a lesser duty

to a client who pleads guilty than to one who decided to go to trial, and in the former

case counsel need only provide his client with an understanding of the law in relation

to the facts, so that the accused may make an informed and conscious choice

between accepting the prosecution’s offer and going to trial.” Wofford v. Wainwright,

748 F.2d 1505, 1508 (11th Cir. 1984). To prove prejudice, “the defendant must show

that there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.

at 59.

Ordonez Godoy asserts that trial counsel “misrepresent[ed] information” to

the court, but he fails to specifically identify a misrepresentation. Instead, Ordonez

Godoy complains that counsel did not fully inform the district court about his

cooperation and believes he is entitled to a reduced sentence under Rule 35.

According to his plea agreement and his representations at the change of plea (Docs.

36 at 6–7, and 92 at 22–24), Ordonez Godoy understood that the United States has

both the sole discretion to determine whether his cooperation warrants a reduced

sentence and the sole authority to move for a reduced sentence based on his

cooperation. Consequently, whether trial counsel did or did not inform the district

court about Ordonez Godoy’s cooperation is of no consequence if the United States

does not move for a reduced sentence under either the guidelines at sentencing or

Rule 35 after sentencing.

Additionally, Ordonez Godoy is ineligible for a lower sentence under the

“safety valve” provision under Section 3553(f) because, when he was sentenced, that

provision did not apply to Ordonez Godoy’s conviction for conspiracy to possess

with the intent to distribute cocaine while aboard a vessel. See United States v. Pertuz-

Pertuz, 679 F.3d 1327 (11th Cir. 2012) (holding that safety-valve relief does not apply

to violations of 46 U.S.C. §§ 70503(a) and 70506(a) and (b)). Nor is Ordonez Godoy

entitled to relief under the First Step Act (“Act”) because the Act “does not apply

retroactively.” United States v. Sanchez, 795 F. App’x 704, 707 (11th Cir. 2019).

The motion under Section 2255 to vacate the sentence (Doc. 1) is DENIED.

The clerk must enter a judgment against Ordonez Godoy, close this case, and enter a

copy of this order in the criminal case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Ordonez Godoy is not entitled to a certificate of appealability (“COA”). A

prisoner moving under Section 2255 has no absolute entitlement to appeal a district

court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district

court must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the dental of a constitutional right.” To

merit a certificate of appealability, Ordonez Godoy must show that reasonable jurists

would find debatable both (1) the merits of the underlying claims and (2) the

procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,

529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001).

Because he fails to show that reasonable jurists would debate either the merits of the

claims or the procedural issues, Ordonez Godoy is entitled to neither a certificate of

appealability nor an appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Ordonez Godoy must request the circuit court for leave to appeal □□ □□□□□

pauperis.

ORDERED in Tampa, Florida, on May 26, 2023.

Andon arailing

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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