# PENA v. United States

> District Court, D. New Jersey · August 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10271664

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 12, 2021
- **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/10271664

## How later opinions describe it (automated extraction)

- noting that a complete absence of investigation usually amounts to ineffective assistance because a counsel cannot be said to have made an informed, strategic decision not to investigate

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
JOSE PENA, :
: Civil Action No. 20-16560 (SRC)
Petitioner, :
:
v. : OPINION
:
UNITED STATES OF AMERICA, :
:
Respondent. :
:

CHESLER, District Judge:
Presently before the Court is Petitioner Jose Pena’s motion to vacate his sentence brought
pursuant to 28 U.S.C. § 2255. (ECF Nos. 1, 3). The Government filed a response to the motion
(ECF No. 9), but Petitioner declined to file a reply. Also before the Court is the Government’s
motion seeking to have one of the exhibits to their answer sealed. (ECF No. 11). For the reasons
set forth below, this Court will grant the Government’s motion to seal, will grant Petitioner an
evidentiary hearing solely as to his claim that counsel failed to file a notice of appeal following an
explicit request, will deny Petitioner’s remaining claims, and will deny Petitioner a certificate of
appealability as to his denied claims.

I. BACKGROUND
Following a narcotics investigation, Petitioner was arrested in the evening of December
18, 2018, after he was found in the driver seat of a Dodge Durango which also contained a large
amount of narcotics which were clearly visible when federal agents approached the vehicle. (ECF
No. 10 at 6-7). After his arrest, agents searched the Durango and found a stolen pistol which was
loaded with thirteen rounds of ammunition, more suspected narcotics, and twenty thousand dollars
in cash. (Id. at 7). In total, 2.3958 kilograms of heroin were found in the vehicle. (Id.).
On June 19, 2019, Petitioner entered into a plea agreement with the Government through
which he agreed to plead guilty to one count of conspiracy to distribute and possess with intent to
distribute more than a kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and

846. (Docket No. 19-545 at ECF No. 14 at 1). In exchange for this guilty plea, the Government
agreed not to file further charges against Petitioner, including charges for illegally possessing the
stolen firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c) which
would have carried an additional consecutive sentence. (Id.). As part of that agreement, Petitioner
also agreed to waive his appellate rights in relation to the drug conspiracy charge. (Id. at 3). The
terms of that appellate waiver are as follows:
[Petitioner] knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file an appeal, any
collateral attack, or any other writ or motion, including but not
limited to an appeal under 18 U.S.C. § 3742 or a motion under 28
U.S.C. § 2255, which challenges the sentence imposed by the
sentencing court if that sentence falls within or below the Guidelines
range that results from the agreed total Guidelines offense level of
31, subject to the applicable statutory mandatory minimum. [The
United States Attorney’s] Office will not file any appeal, motion, or
writ which challenges the sentence imposed by the sentencing court
if that sentence falls within or above the Guidelines range that results
from the agreed total Guidelines offense level of 29. The parties
reserve any right they may have under 18 U.S.C. § 3742 to appeal
the sentencing court’s determination of the criminal history
category. The provisions of this paragraph are binding on the
parties even if the Court employs a Guidelines analysis different
from that stipulated to herein. Furthermore, if the sentencing court
accepts a stipulation, both parties waive the right to file an appeal,
collateral attack, writ, or motion claiming that the sentencing court
erred in doing so.

(Id. at 8). In signing the plea agreement, Petitioner averred that he understood the terms of his

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plea agreement fully after discussing the agreement with his attorney, and that he wished to plead
guilty pursuant to the agreement. (Id. at 6).
Petitioner appeared before this Court to plead guilty on July 31, 2019. As part of that
process, Petitioner submitted an application for permission to plead guilty. (Docket No. 19-545
at ECF No. 13). In that application, Petitioner affirmed that he understood the rights he was

waiving by pleading guilty, had had his agreement explained to him by counsel, that counsel had
discussed with him and that he understood the appellate waiver in his agreement, and that he
wished to plead guilty. (Id.).
During his plea hearing, Petitioner once again confirmed that he wished to plead guilty.
(Document 1 attached to ECF No. 9 at 4-5). Petitioner also affirmed that he understood the terms
of his plea agreement and the rights he was waiving by pleading guilty, that counsel had explained
the agreement and its terms to his satisfaction, and that neither his bipolar disorder nor his regular
medication interfered with his ability to understand the plea agreement and the plea proceedings.
(Id. at 5-20). Petitioner’s counsel further stated that he had “known [Petitioner] for many years”

and had “no reason” to believe Petitioner was incompetent in any way. (Id. at 21). This Court
also thoroughly explained the appellate waiver contained in the plea agreement to Petitioner, and
Petitioner specifically stated that he understood the terms of the waiver and wished to plead guilty
notwithstanding the appellate waiver. (Id. at 18-20). Based on these statements by Petitioner
and this Court’s evaluation of his responses to questioning, this Court found that Petitioner had
knowingly and voluntarily entered into his plea agreement and accepted his guilty plea. (Id. at 5-
24).
This Court sentenced Petitioner on November 20, 2019. (Document 2 attached to ECF

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No. 9 at 2). In sentencing Petitioner, this Court accepted the recommended Guidelines level of
29 with a criminal history category of IV provided by Petitioner’s presentence report, and
sentenced Petitioner to the middle of the guidelines range to a term of 135 months imprisonment.
(Id. at 14-16).
Petitioner did not request to file an appeal at his sentencing hearing, (see id.), nor did he

ultimately appeal his plea or sentence. (ECF Docket No. 19-545 Docket Sheet). Instead, in
November 2020, he filed his motion to vacate sentence in this matter. (ECF No. 1). In his
motion to vacate sentence, Petitioner presents three claims1 – that his plea counsel proved
ineffective in failing to investigate whether a warrant was sought to track his phone prior to his
arrest, that his guilty plea was not knowing or voluntary because his bipolar disorder and learning
disabilities prevented him from understanding the plea or its terms including his appellate waiver
and that counsel was ineffective in permitting him to proceed with his plea under the
circumstances, and that his plea counsel proved ineffective in failing to file a notice of appeal
despite his direct request that counsel do so. (Id.). Although Petitioner asserts that he both

requested a notice of appeal be filed shortly after sentencing and then again by letter several months
later, neither of the attorneys involved in representing Petitioner in his criminal matter have any
recollection of Petitioner making such a request. (See Document Nos. 3-4 attached to ECF No.
9). Both attorneys further state that, had Petitioner requested they do so, they would have filed a
notice of appeal on his behalf. (Id.).

1 In his motion, Petitioner packages his assertion that he did not understand his plea proceedings
as part of his claim that counsel failed to file a notice of appeal on his behalf.

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II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.
2003).

B. Analysis
1. An evidentiary hearing will be held only as to Petitioner’s notice of appeal related
ineffective assistance claim
A district court need not hold an evidentary hearing on a motion to vacate where “the
motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.

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Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's
personal knowledge, conclusively negates the factual predicates asserted by the petitioner or
indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge
v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands
v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,

587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. Because Petitioner’s investigation and
knowing and voluntary plea related ineffective assistance of counsel claims are clearly without
merit for the reasons discussed below, no hearing is necessary as to those claims. Because this
Court cannot resolve the factual dispute contained in Petitioner’s claim that counsel failed to file
a notice of appeal despite his alleged request that they do so this Court shall hold a hearing solely
as to that claim for the reasons expressed below.

2. Petitioner’s ineffective assistance of counsel claims
In his motion to vacate sentence Petitioner presents several claims asserting ineffective

assistance of counsel. The standard applicable to such claims is well established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see
also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
To succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,
493 F.3d at 299.

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In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.

Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that
“there is a reasonable probability, 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.” Id. at 694; see also Shedrick, 493 F.3d
at 299. Where a “petition contains no factual matter regarding
Strickland’s prejudice prong, and [only provides] . . . unadorned
legal conclusion[s] . . . without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the
petitioner has not shown his entitlement to habeas relief. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because
failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s
performance when possible, [Strickland, 466 U.S. at 697-98],”
courts should address the prejudice prong first where it is dispositive
of a petitioner’s claims. United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).

Judge, 119 F. Supp. 3d at 280-81.
Petitioner first contends that counsel failed to properly investigate the facts of his criminal
matter, and that had counsel done so he might have discovered that the Government failed to obtain
a warrant to track Petitioner using his cell phone. As courts in this District have explained,

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[i]n Strickland, the Supreme Court held that trial counsel “has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments.”
466 U.S. at 691. “The failure to investigate a critical source of
potentially exculpatory evidence may present a case of
constitutionally defective representation,” and “the failure to
conduct any pretrial investigation generally constitutes a clear
instance of ineffectiveness.” United States v. Travillion, 759 F.3d
281, 293 n. 23 (3d Cir. 2014) (internal quotations omitted); see also
United States v Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that
a complete absence of investigation usually amounts to ineffective
assistance because a counsel cannot be said to have made an
informed, strategic decision not to investigate); United States v.
Baynes, 622 F.2d 66, 69 (3d Cir. 1980).

Where a Petitioner can show that counsel's failure to
investigate amounts to deficient performance, he must still show
prejudice. In order to do so,

a defendant basing an inadequate assistance claim on
his or her counsel's failure to investigate must make
“a comprehensive showing as to what the
investigation would have produced. The focus of
the inquiry must be on what information would have
been obtained from such an investigation and
whether such information, assuming admissibility in
court, would have produced a different result.

United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)
(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));
see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)
(“[w]hen a petitioner alleges that counsel's failure to investigate
resulted in ineffective assistance, the petitioner has the burden of
providing the court with specific information as to what the
investigation would have produced”); United States v. Green, 882
F.2d 999, 1002 (5th Cir. 1989) (“A defendant who alleges a failure
to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have
altered the outcome” of Petitioner's case); accord Untied States v.
Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).

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Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016).

Although Petitioner contends that he believes counsel “would have most likely” found a
lack of a relevant warrant for his cell phone location data had counsel investigated the facts of
Petitioner’s crime, he provides nothing to support this assertion other than his own hope or belief.
Contrary to Petitioner’s allegations, however, the Government did seek and obtain a warrant for
the relevant data. (See Docket Nos. 18-mj-8254; 18-mc-285). As a warrant was obtained for the
relevant data, and Petitioner has not provided a showing that further investigation and discussion
of the factual background of Petitioner’s crimes would have altered the outcome of Petitioner’s
case, Petitioner has failed to show that counsel was ineffective in failing to investigate and discuss
any discovery or factual background of this matter with Petitioner. Brown, 2016 WL 1732344 at
*4-5. Petitioner’s investigation/discovery related claim is therefore without merit and must be
denied as such.
Petitioner next contends that, because of his bipolar disorder and an unspecified learning
disability, Petitioner’s guilty plea and waiver of his rights was not knowing or voluntary, and that

counsel was ineffective in advising him as to the appellate waiver contained in his plea agreement.
Criminal defendants have a “Sixth Amendment right to counsel, [which] extends to the plea-
bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). To show that counsel’s
ineffectiveness robbed them of that right and warrants reversal of their conviction, such a
defendant must first show that counsel’s representation “fell below an objective standard of
reasonablenss.” Id. at 163. In addressing a guilty plea, counsel is required to provide a defendant
with sufficient information that he can “make a reasonably informed decision whether to accept a
plea offer.” United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015) (quoting Shotts v. Wetzel,

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724 F.3d 364, 376 (3d Cir. 2013); see also Lafler, 566 U.S. at 163; Hill v. Lockart, 474 U.S. 52,
57-58 (1985). Even where a petitioner can show that counsel gave erroneous advice, such advice
will still not support an ineffective assistnace claim where an adequate plea hearing is conducted
which corrects counsel’s misadvice. See, e.g., Bui, 795 F.3d at 367 (quoting Shedrick, 493 F.3d
at 299). Even if a petitioner can show that counsel was deficient, he must still show that he was

prejudiced by counsel’s failing by providing facts which indicate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different . . . [which i]n the context of pleas [requires] a [petitioner] show the outcome of the
plea process would have been different with competent advice.” Lafler, 566 U.S. at 163.
Petitioner here must therefore show that he would not have pled guilty had counsel’s advice better
informed him.
The Court notes that Petitioner’s claims that his bipolar disorder or alleged unspecified
learning disability prevented him from understanding the terms of his plea agreement and plea
colloquy are directly belied by Petitioner’s clear statements to this Court both in his application to

plead guilty and during his plea hearing. A criminal defendant’s “[s]olemn declarations in open
court carry a strong presumption of verity,” and the “subsequent presentation of conclusory
allegations . . . [or] contentions that in the face of the record are wholly incredible” are insufficient
to refute that presumption. Blackledge v. Allison, 431 U.S. 63, 73-75 (1977). Here, Petitioner
clearly confirmed to this Court that he understood the terms of his plea agreement – including his
appellate waiver – and the rights he was foregoing by pleading guilty, and directly affirmed that
his mental issues and medication did not interfere with his ability to understand the plea proceeding
in any way. Those statements are entitled to a strong presumption of truthfulness, and Petitioner’s

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bare unsupported allegations in his current motion are utterly insufficient to overcome that
presumption in the face of his repeated clear statements to this Court. Id.
Contrary to Petitioner’s assertions, the record clearly indicates that Petitioner understood
the terms of his plea agreement and freely chose to plead guilty. Any incorrect or insufficient
advice counsel may have given as to the appellate waiver were likewise clearly dispelled by this

Court’s thorough explanation of that waiver to Petitioner during the plea hearing, which Petitioner
confirmed he understood. Thus, Petitioner cannot show that counsel was deficient enough to
warrant relief on this claim, and his claim that his plea was not knowing or voluntary, or that
counsel failed to properly advise him as to his plea agreement are thus without merit.2
In his final claim, Petitioner contends that he requested that counsel file a notice of appeal
on his behalf, and that counsel failed to do so. In order to show that counsel was ineffective as to
such a claim, Petitioner must show either that counsel was ineffective in failing to confer with him
regarding an appeal or that he expressly indicated his desire to appeal and that counsel refused or
failed to file an appeal on his behalf. See, e.g., Garza v. Idaho, --- U.S. ---, 139 S. Ct. 738, 746

(2019). A Petitioner will therefore establish an entitlement to relief where the petitioner can show
“that, but for counsel’s deficient failure to consult with him about an appeal [or to file an appeal
after being directed to do so, the petitioner] would have timely appealed.” Id. at 747 (quoting Roe

2 Although the Court need not reach the prejudice prong, the Court further notes that Petitioner
has not alleged that he would not have pled guilty had he been “properly” advised as to his plea
agreement. Indeed, Petitioner specifically states in his brief in this matter that he “waived his
right to an indictment and agreed to plead before the Court, but only because of the lingering [§]
924[(c)] charge if he didn’t accept the plea being offered,” (see ECF No. 1 at 28), indicating that
Petitioner wished to plead guilty regardless because to refused to plead would have resulted in at
least one additional charge and an additional sentence. Petitioner has thus failed to show the
outcome of the plea proceeding would have been different, and thus fails to establish prejudice on
that basis.

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v. Flores-Ortega, 528 U.S. 470, 484 (2000)). Where such a showing is made, this Court must
presume prejudice in the form of the lost appeal, even where there is an otherwise applicable plea
waiver which would apply and prevent a direct appeal from proceeding on the merits. Id. The
petitioner need not show that the appellate claims he wishes to raise would not have been barred
by his appellate waiver, nor must he show that his desired appellate claims are of any merit, the

Supreme Court has clearly held that the loss of desired appellate proceedings is prejudice enough
to warrant relief in the form of a nunc pro tunc appeal. Id.; see also Solis v. United States, 252
F.3d 289, 295 (3d Cir. 2001) (proper relief for a lost appeal ineffective assistance of counsel claim
is to provide the petitioner with “the opportunity nun pro tunc to brief his direct appeal in full”).
Where there is a factual dispute between the petitioner and his counsel as to whether the petitioner
actually directed counsel to file an appeal or as to whether counsel should have known that
Petitioner wished to file an appeal, an evidentiary hearing must be held to resolve that dispute.
Solis, 252 F.3d at 295; see also Flores-Ortega, 528 U.S. at 487.
Petitioner and his two attorneys have differing recollections of whether Petitioner requested

to have a notice of appeal filed. Petitioner contends that he not only requested an appeal be filed
shortly after his sentencing, but also followed up with two letters in the spring of 2020 reiterating
that request. His two attorneys both disclaim any recollection of such a request and state that, had
such a request been made, they would have filed the requested notice of appeal. As such, there is
a direct factual dispute over whether Petitioner requested a notice of appeal be filed, and this Court
is compelled to hold an evidentiary hearing limited to that issue. Solis, 252 F.3d at 295.
As a hearing will be held on this issue, this Court is required by Rule 8(c) of the Rules
Governing Section 2255 Proceedings to appoint counsel for Petitioner if he “qualifies to have

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counsel appointed under 18 U.S.C. § 3006A.” To qualify for the appointment of counsel for such
purposes in light of this Court’s finding that Petitioner’s appeal claim is sufficient to warrant an
evidentiary hearing, Petitioner must show that he is indigent. Reese v. Fulcomer, 946 F.2d 247,
263-64 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C. § 2254(d). Thus, to the
extent Petitioner wishes to have counsel appointed to represent him at the hearing, he should

provide the Court with proof of his indigence within thirty days. Finally, because Petitioner’s
presentence report, currently filed under seal in this matter, contains sensitive information that is
generally not available for public retrieval, and because Petitioner has not opposed the
Government’s motion, the Government’s motion to seal Petitioner’s PSR (ECF No. 11) is granted.

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As Petitioner’s involuntary plea and
investigation claims are clearly without merit, Petitioner is denied a certificate of appealability as
to those claims as jurists of reason would not conclude that those claims are adequate to deserve
encouragement to proceed further.

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IV. CONCLUSION
For the reasons stated above, Petitioner’s involuntary plea and investigation related
ineffective assistance of counsel claims are DENIED, Petitioner is DENIED a certificate of
appealability as to those claims, Petitioner is GRANTED a hearing as to his claim related to
counsel’s alleged failure to file a notice of appeal after an explicit request that he do so, and the

Government’s motion to seal (ECF No. 11) is GRANTED. An appropriate order follows.

___s/ Stanley R. Chesler______
Hon. Stanley R. Chesler,
United States District Judge

Dated: August 12, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10271664. Public record. Not legal advice.