Alexander Parra Borja v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALEXANDER PARRA BORJA,

Petitioner,

v. Case No. 8:24-cv-83-TPB-AEP

Case No. 8:22-cr-97-TPB-AEP

UNITED STATES OF AMERICA,

Respondent.

____________________________________

ORDER

Alexander Parra Borja moves under 28 U.S.C. § 2255 to vacate his

convictions and sentence for conspiring to possess with intent to distribute

cocaine, and for possessing with intent to distribute cocaine, while aboard a

vessel subject to the jurisdiction of the United States. After pleading guilty to

both charges, he is currently serving a below guidelines sentence of 132

months. He challenges his convictions and sentence on three grounds of

ineffective assistance of counsel. Parra Borja is entitled to no relief.

I. Background

On March 1, 2022, a maritime patrol aircraft detected a go-fast vessel

(GFV), with no indicia of nationality, in international waters approximately

119 nautical miles south of Isla Beata, Dominican Republic. The United States

Coast Guard conducted a right-of-visit boarding and identified four Colombian

nationals on board the GFV. Parra Borja identified himself as the master of

the vessel and claimed Colombian nationality for both himself and the vessel.

The Coast Guard contacted the Colombian government to verify the vessel’s

nationality, but the Colombian government could neither confirm nor deny the

vessel’s registry or nationality. The Coast Guard seized 1,717 kilograms of

cocaine from the GFV. (Crim. Doc. 127 at ¶¶ 7–10; Crim. Doc. 149 at 18–21)

The United States submitted a State Department certification to the Court on

June 21, 2022, establishing the United States’ jurisdiction over the vessel.

(Crim. Doc. 49)

Parra Borja was charged in a two-count indictment with (1) conspiracy

to possess with intent to distribute five kilograms or more of cocaine while

aboard a vessel subject to the jurisdiction of the United States, in violation of

46 U.S.C. §§ 70503(a) and 70506(a) and (b) and 21 U.S.C. § 960 (b)(1)(B)(ii);

and (2) possession with intent to distribute five kilograms or more of cocaine

while aboard a vessel subject to the jurisdiction of the United States, in

violation of 46 U.S.C. § 70503(a) and 70506(a), 21 U.S.C. § 960(b)(1)(B)(ii) and

18 U.S.C. § 2. (Crim. Docs. 6, 137, and 149)

Parra Borja pleaded guilty without a plea agreement to both counts of

the indictment. (Crim. Doc. 149) At the plea hearing, the United States recited

the factual basis, which included that Parra Borja claimed Colombian

nationality for both himself and the vessel, and that the Colombian

government could neither confirm nor deny the vessel’s nationality. (Id. at 19–

20) The Coast Guard thus treated the vessel as one without nationality. (Id.

at 20) Parra Borja did not disagree with any of the facts and affirmed they

were true. (Id. at 21)

The Probation Office calculated a total offense level of 35 and a

guidelines range of 168 to 210 months. (Crim. Doc. 127 at ¶ 57) At sentencing,

the United States requested a 135-month sentence, which represented a two-

level downward variance, to alleviate any sentencing disparity between Parra

Borja and his codefendants. (Crim. Doc. 148 at 4) The district court observed

that “[t]his particular boat ha[d] about the most drugs [the court had] ever seen

in any of the cases that have been brought” and that, as the captain of the GFV,

Parra Borja was “ultimately responsible for this trip.” (Id. at 11 and 13) After

reviewing the sentences imposed on Parra Borja’s codefendants, the district

court departed downward from the guidelines range and sentenced him to 132

months. He filed no appeal.

II. Analysis

Parra Borja now moves to vacate his convictions and sentence on three

grounds of ineffective assistance of counsel. He claims counsel was ineffective

for (1) not challenging the constitutionality of the Maritime Drug Law

Enforcement Act (MDLEA) (Ground One), (2) not protecting his constitutional

rights (Ground Two), and (3) not challenging the district court’s jurisdiction

(Ground Three). The United States responds that Parra Borja’s claims are

meritless. 1 (Civ. Doc. 6) Parra Borja replies. (Civ. Doc. 13)

To prevail on a claim of ineffective assistance of counsel, the petitioner

must show that (1) counsel’s representation fell below an objective standard of

reasonable professional assistance; and (2) the petitioner was prejudiced by

that deficient performance. Strickland v. Washington, 466 U.S. 668, 693–94

(1984). To establish deficient performance, a petitioner must show that “no

competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). A

petitioner demonstrates prejudice only when he establishes “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.

B. Ground One

In Ground One, Parra Borja claims that counsel rendered ineffective

assistance by not challenging the constitutionality of the MDLEA. He is

1 Alternatively, the United States correctly argues that, to the extent Parra Borja

intended to raise substantive constitutional claims (rather than ineffective assistance

claims), he procedurally defaulted those claims by not raising them before this district

court or on direct appeal. (Civ. Doc. 6 at 6) The district court liberally construes

Parra Borja’s motion as raising claims of ineffective assistance of counsel and rejects

them as meritless. See Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A]

federal court may skip over the procedural default analysis if a claim would fail on

the merits in any event.”); Garrison v. United States, 73 F.4th 1354, 1359 n.9 (11th

Cir. 2023) (same).

entitled to no relief because this claim is foreclosed by binding precedent and

because he waived this claim by pleading guilty.

The constitutionality of the MDLEA is well established by circuit

precedent. “[The Eleventh Circuit] has held that the MDLEA is a valid

exercise of Congress’s power under the Felonies Clause as applied to drug

trafficking crimes without a ‘nexus’ to the United States.” United States v.

Cabezas-Montano, 949 F.3d 567, 587 (11th Cir. 2020) (citing United States v.

Cruickshank, 837 F.3d 1182, 1188 (11th Cir. 2016) and United States v.

Campbell, 743 F.3d 802, 805 (11th Cir. 2014)). And, “[the Eleventh Circuit]

has held that the Fifth Amendment’s Due Process Clause does not prohibit the

trial and conviction of aliens captured on the high seas while drug trafficking

because the MDLEA provides clear notice that all nations prohibit and

condemn drug trafficking aboard stateless vessels on the high seas.” Cabezas-

Montano, 949 F.3d at 587 (citing United States v. Rendon, 354 F.3d 1320, 1326

(11th Cir. 2003) and United States v. Valois, 915 F.3d 717, 722) (11th Cir.

2019)).

Parra Borja’s reliance on United States v. Davila-Reyes, 23 F.4th 153 (1st

Cir. 2022), reh’g en banc granted, opinion withdrawn, 38 F.4th 288 (1st Cir.

2022), and on reh’g en banc, 84 F.4th 400 (1st Cir. 2023), which held that

Congress exceeded its power by defining a “vessel without nationality” to

include vessels for which the crew claimed a nationality but the nation neither

confirmed nor denied, is misplaced. The First Circuit withdrew the panel

opinion on which Parra Borja relies. Therefore, the opinion is “officially gone”

and has “no legal effect whatsoever.” See United States v. Sigma Int’l, Inc., 300

F.3d 1278, 1280 (11th Cir. 2002). Furthermore, the Eleventh Circuit has

“decline[d] to adopt the holding of the First Circuit’s now-withdrawn opinion

in Davila-Reyes given our precedent concluding that other provisions of the

MDLEA are constitutional under the Felonies Clause.” United States v.

Santos-Santana, No. 22-10367, 2022 WL 17973602, at *7 (11th Cir. Dec. 28,

2022).

Parra Borja demonstrates neither that counsel performed deficiently nor

that he was prejudiced by counsel’s performance in not challenging the

constitutionality of the MDLEA. As explained supra, his challenge to the

constitutionality of the MDLEA is foreclosed by binding precedent. And,

counsel does not perform deficiently by failing to assert an argument that

binding precedent forecloses. See Denson v. United States, 804 F.3d 1339, 1343

(11th Cir. 2015); see also 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.”).

Furthermore, by pleading guilty, Parra Borja waived claims based on

events that occurred before entry of the plea, including a claim of ineffective

assistance of counsel. See Wilson v. United States, 962 F.2d 996, 997 (11th Cir.

1992) (“A defendant who enters a plea of guilty waives all non-jurisdictional

challenges to the constitutionality of the conviction, and only an attack on the

voluntary and knowing nature of the plea can be sustained.”).

C. Ground Two

In Ground Two, Parra Borja vaguely claims in one sentence that counsel

was ineffective for not protecting his constitutional rights. (Civ. Doc. 1 at 5

and 10) He offers no factual support or explanation for this claim.

Although a district court may liberally construe a pro se § 2255 motion,

the petitioner must “present a claim in clear and simple language such that

the district court may not misunderstand it.” Dupree v. Warden, 715 F.3d

1295, 1299 (11th Cir. 2013); see also Walker v. Dugger, 860 F.2d 1010, 1011

(11th Cir. 1988) (claims raised only superficially will not be treated as properly

raised under § 2255).

Parra Borja’s one-sentence claim in Ground Two that counsel rendered

ineffective assistance by not protecting his constitutional rights is vague,

conclusory, unsupported, and insufficient to sustain an ineffective assistance

of counsel claim. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)

(holding that conclusory statements, unsupported by specific facts or the

record, are insufficient to demonstrate ineffective assistance of counsel).

Additionally, he waived this claim by pleading guilty. See Wilson, 962 F.2d at

997.

D. Ground Three

In Ground Three, Parra Borja claims that counsel rendered ineffective

assistance by not challenging the district court’s jurisdiction over a foreign

vessel in international waters. He is entitled no relief on this claim because

stipulated facts establish the district court’s jurisdiction and because he

waived this claim by pleading guilty.

The MDLEA makes it a crime to possess with intent to distribute a

controlled substance or conspire to do so “[w]hile on board a covered vessel.”

46 U.S.C. § 70503(a). A vessel is covered by the MDLEA if it is “subject to the

jurisdiction of the United States.” Id. § 70503(e)(1). A vessel is “subject to the

jurisdiction of the United States” if it is “a vessel without nationality.” Id. §

70502(c)(1)(A). As relevant here, a vessel is “without nationality” when the

country of claimed registry “does not affirmatively and unequivocally assert

that the vessel is of its nationality.” Id. § 70502(d)(1)(C). “Because stateless

vessels do not fall within the veil of another sovereign’s territorial protection,

all nations can treat them as their own territory and subject them to their

laws.” United States v. Rendon, 354 F.3d 1320, 1325 (11th Cir. 2003).

Jurisdictional issues “are preliminary questions of law to be determined

solely by the trial judge.” 46 U.S.C. § 70504. “It is fundamental that parties

may not stipulate to federal jurisdiction[;]” however, parties may “stipulate to

facts that bear on [the court’s jurisdiction].” United States v. Iguaran, 821 F.3d

1335, 1337 (11th Cir. 2016) (quotations omitted). “A court’s task is to

determine whether the stipulated facts give rise to jurisdiction.” Id.

Stipulated facts establish the district court’s jurisdiction over Parra

Borja’s vessel. Parra Borja agreed that, at the time of the interdiction by the

Coast Guard, the vessel was located in international waters and displayed no

indicia of nationality. (Crim. Doc. 149 at 19–20) He further agreed that (1) he

identified himself as the master of the vessel, (2) he made a verbal claim of

Columbian nationality for the vessel, and (3) the Colombian government could

not confirm the vessel’s nationality or registry. (Id.) Such stipulated facts

establish that the vessel was without nationality and therefore subject to the

jurisdiction of the United States. See United States v. Gruezo, 66 F.4th 1284,

1290 (11th Cir. 2023) (ruling that the defendant’s stipulations “alone [are]

sufficient . . . to affirm . . . that the vessel was subject to the jurisdiction of the

United States”). Consequently, Parra Borja cannot show that counsel was

ineffective, or that he was prejudiced by counsel’s performance, in not

advancing a meritless challenge to the district court’s jurisdiction.

Furthermore, by pleading guilty, Parra Borja waived any claim that

there was insufficient evidence to show that the vessel was “without

nationality” and “subject to the jurisdiction of the United States.” See United

States v. Ruiz, 811 F. App’x 540, 543 (11th Cir. 2020) (“By pleading guilty, [the

defendant] admitted that the vessel was in international waters and was

without a nationality [and] relinquished his challenges to the evidence showing

that the vessel was stateless.”); United States v. Forbes-Suarez, 553 F. App’x

913, 914 (11th Cir. 2014) (holding that, by pleading guilty, the defendant

waived his as-applied challenge to the constitutionality of the MDLEA).

B. Parra Borja’s Motion to Amend and Reply

On March 27, 2024, Parra Borja moved to amend his § 2255 motion to

add a fourth claim concerning counsel’s failure to provide him a Spanish

translation of documents. (Civ. Doc. 7) He claims that counsel violated due

process by failing to provide him with a Spanish translation of a proposed (but

unexecuted) plea agreement and that he was “induced [into] an ambiguous

plea agreement that he refused and that he only accepted the proceedings in

Court because his counsel instructed him to do so.” (Id. at 1–3) He claims that

he “never understood the plea agreement, he was driven blind by his counsel

that just hold him to ‘sign here’ and for that reason he refused [to sign].” (Id.)

Subsequently, on May 21, 2024, Parra Borja filed his reply to the United

States’ response in opposition to his § 2255 motion in which he repeats his

claim that “counsel never provided translated documents permitting [him] to

fully understand the process that he was going through.” (Civ. Doc. 13 at 3)

He claims that “counsel never offered him a plea agreement or any other

document in his native tongue.” (Id. at 8) He argues that he had “no voice and

[was] dependent of his counsel to voice objections and to understand the

process.” (Id. at 6)

The United States correctly responds that Parra Borja’s proposed

claim—that counsel neglected to provide him with a Spanish translation of a

proposed plea agreement or other unidentified documents—is untimely and

does not relate back to his original § 2255 motion. (Civ. Doc. 11) The

Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year

statute of limitations for filing a § 2255 motion to vacate or correct sentence.

28 U.S.C. § 2255(f). The one-year period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion

created by governmental action in violation of the

Constitution or laws of the United States is removed, if the

movant was prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise

of due diligence.

28 U.S.C. § 2255(f).

The United States calculates that Parra Borja’s judgment of conviction

became final on February 15, 2023, when the time for filing a direct appeal

passed.2 (Civ. Doc. 6 at 5 and Civ. Doc. 11 at 3); see Akins v. United States, 204

F.3d 1086, 1089 n.1 (11th Cir. 2000) (explaining that if a defendant does not

pursue a direct appeal, his conviction becomes final upon the expiration of the

period for filing a timely notice of appeal, or 14 days after entry of judgment).

Therefore, he had until February 15, 2024, to file his § 2255 motion. He timely

filed his original § 2255 motion on January 1, 2024. (Civ. Doc. 1-1 at 21); see

Washington v. United States, 243 F. 3d 1299, 1301 (11th Cir. 2001) (pleadings

filed by an incarcerated petitioner are deemed filed on the date they are placed

into the prison’s official mail system). However, he did not move to add his

fourth claim until March 27, 2024—more than one month after his § 2255 filing

deadline expired.

“When a prisoner amends his section 2255 motion after the expiration of

AEDPA’s one-year limitation period, claims in the amended motion are time-

barred, unless the claim ‘relates back’ to a claim in the original, timely-filed

motion.” Chin v. United States, 853 F. App’x 640, 644 (11th Cir. 2021) (citing

Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000)). “Under Rule

15(c), an amended pleading ‘relates back’ to the original pleading if the

amended claim ‘arose out of the conduct, transaction, or occurrence set out—

2 The district court calculates that Parra Borja’s judgment of conviction became final

four days earlier, on February 9, 2023. Nevertheless, the district court accepts the

later date of February 15, 2023, for purposes of ruing on the timeliness of his proposed

claim.

or attempted to be set out—in the original pleading.’” Id. (quoting Fed. R. Civ.

P. 15(c)(1)(B)).

To determine whether a claim relates back in the context of a petition

for post-conviction relief, the district court considers whether, Chin, 853 F.

App’x at 644:

“the existence of a common ‘core of operative facts’ united

the original and newly asserted claims.” Mayle [v. Felix,

545 U.S. 644, 659 (2005))]. Habeas petitions are subject to

a more demanding pleading standard than ordinary civil

complaints; the Supreme Court has cautioned against

applying Rule 15(c)’s “conduct, transaction, or occurrence”

language at too high a level of generality. See id. at 661,

125 S.Ct. 2562; 655–56 (noting that petitioners seeking

post-conviction relief must “specify all the grounds for

relief available” and “state the facts supporting each

ground”; “each separate congeries of facts supporting the

grounds for relief . . . would delineate an “occurrence.”

An amended habeas petition . . . does not relate back (and

thereby escape AEDPA’s one-year limit) when it asserts a

new ground for relief supported by facts that differ in both

time and type from those the original pleading set forth.”

Id. at 650, 125 S.Ct. 2562. That an amended claim arises

from the same trial and conviction is not enough to satisfy

the “relate back” standard. Id.; Davenport, 217 F.3d at

1344.

Parra Borja’s original § 2255 motion asserts three claims of ineffective

assistance of counsel that concern counsel’s failure to challenge the

constitutionality of the MDLEA facially and as-applied to him. His proposed

claim (as presented in both his motion to amend and his reply), however,

concerns counsel’s alleged failure to provide Spanish translations for a plea

agreement and other unidentified documents, which inhibited his ability to

understand the proceedings. His original § 2255 motion contains no complaint

about counsel’s failure to provide Spanish translations nor does it contain any

challenge to the knowing and voluntary nature of his guilty plea. Accordingly,

his proposed claim does not relate back to his original § 2255 motion and is

untimely because it asserts “a new ground for relief supported by facts that

differ in both time and type from those the original pleading set forth.” Mayle,

545 U.S. at 650; see also Dean v. United States, 278 F.3d 1218, 1221 (11th Cir.

2002) (“While Rule 15(c) contemplates that parties may correct technical

deficiencies or expand facts alleged in the original pleading, it does not permit

an entirely different transaction to be alleged by amendment.”).

Finally, even if Parra Borja timely-filed his proposed claim that counsel

rendered ineffective assistance by not providing him a Spanish translation of

a plea agreement, he is entitled to no relief because he fails to show that he

was prejudiced by counsel’s alleged performance. He advances no argument to

show that he was prejudiced by counsel’s failure to provide a Spanish

translation for a plea agreement to which he ultimately did not assent. “To

show prejudice after a rejected plea, an individual must ‘establish a reasonable

probability that, absent counsel’s alleged ineffective assistance, he would have

accepted the plea agreement.’” Lalani v. United States, 315 F. App’x 858, 860–

61 (11th Cir. 2009) (quoting Diaz v. United States, 930 F.2d 832, 835 (11th Cir.

1991)). Parra Borja makes no argument that he would have accepted the plea

agreement if counsel had provided a Spanish translation.

III. Conclusion

Parra Borja’s motion under § 2255 to vacate, set aside, or correct his

sentence (Civ. Doc. 1) is DENIED. And, his motion to amend (Civ. Doc. 7) is

DENIED. The clerk is directed to enter a judgment against Parra Borja,

terminate any pending motions, close this case, and enter a copy of this order

in the criminal case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Parra Borja is not entitled to a certificate of appealability (“COA”). A

prisoner moving under § 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 denial of a constitutional

right.” To merit a certificate of appealability, Parra Borja 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,

Parra Borja 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. Parra Borja must obtain permission from the circuit

court to appeal in forma pauperis.

DONE and ORDERED in Chambers in Tampa, Florida, this 20th day

of June, 2024.

‘TOMBARBER—it«*™

U.S. DISTRICT JUDGE

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