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United States v. Miranda-Ortiz

United States District Court, D. Minnesota

February 4, 2019

United States of America, Respondent,
Brian Miranda-Ortiz, Petitioner.


          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on Petitioner Brian Miranda-Ortiz's Motion to Vacate under 28 U.S.C. § 2255. For the following reasons, the Motion is denied.


         Petitioner Brian Miranda-Ortiz, who asserts that his true name is Jose Orlando Soriano, was initially charged by criminal Complaint with distribution and conspiracy to distribute a mixture and substance containing methamphetamine. (Docket No. 1.) After Miranda-Ortiz was arrested and detained, the Grand Jury issued an Indictment, [1] charging him with one count of conspiracy to distribute methamphetamine and two counts of distribution of methamphetamine. (Docket No. 16.) In addition, the Indictment contained forfeiture allegations seeking the forfeiture of “any and all property constituting, or derived from, any proceeds obtained directly or indirectly as a result of” the crimes in the Indictment. (Id. at 4.)

         Miranda-Ortiz's attorney filed motions for discovery and disclosure, and a motion to suppress all physical evidence and statements Miranda-Ortiz made at the time of his arrest. (Docket No. 45.) The pretrial motions were rendered moot, however, when on April 3, 2015, Miranda-Ortiz pled guilty to the charged conspiracy. (Docket No. 76.) As the parties prepared for sentencing, Miranda-Ortiz had second thoughts about his guilty plea and his counsel filed a motion to withdraw the plea. (Docket No. 93.) Miranda-Ortiz then filed his own pro se motion to withdraw his plea (Docket No. 107), and his counsel sought to withdraw from the case. (Docket No. 115.) The Court appointed new counsel (Docket No. 120), and in November 2015, the Court denied the motions to withdraw the plea. (Docket No. 129.) A week later, Miranda-Ortiz's new counsel also asked for permission to withdraw (Docket No. 130) and the Court appointed two new attorneys to represent him. (Docket Nos. 136, 137.) In the meantime, Miranda-Ortiz, proceeding pro se, sought interlocutory appeal of the denial of his motions to withdraw plea (Docket No. 131), but the Court of Appeals dismissed the appeal for lack of jurisdiction. (Docket No. 143.) The Court thereafter set the matter for a March 21, 2016, sentencing. (Docket No. 144.)

         On March 1, Miranda-Ortiz filed yet another pro se motion to withdraw his plea (Docket No. 155), and when that motion was denied, filed an “additional” motion to withdraw his plea. (Docket No. 157.) In addition to the motions to withdraw, Miranda-Ortiz filed a pro se motion invoking his rights under Alleyne (Docket No. 145), a pro se challenge to the Court's subject-matter jurisdiction (Docket No. 158), a pro se “objection” arguing that he did not consent to the sentence for which his attorneys argued because he did not sign the plea agreement under his proper name (Docket No. 164), a motion for the presiding District Judge to recuse himself (Docket No. 174), and another motion to withdraw his plea. (Docket No. 166.)

         The Court denied all pending motions save the Government's motion for a final judgment of forfeiture, and sentenced Miranda-Ortiz to the mandatory minimum 120 months' imprisonment followed by five years of supervised release. (Docket No. 177.) Miranda-Ortiz filed two pro se notices of appeal from this Judgment (Docket Nos. 180, 181), and his attorneys also appealed. (Docket No. 184.) During the pendency of the appeal, Miranda-Ortiz continued to file pro se motions challenging his guilty plea and his conviction. (Docket Nos. 189, 190.)

         The Court of Appeals affirmed Miranda-Ortiz's conviction, determining that the Court correctly denied the various motions to withdraw the plea in large part because the record explicitly contradicted Miranda-Ortiz's allegations. (Docket No. 194.) The United States Supreme Court denied certiorari (Docket No. 198), and this Motion to Vacate followed.

         The Motion raises 14 separate grounds for relief, all of which contain multiple subparts. Ground One, claiming ineffective assistance of counsel, contains 74 separate instances of allegedly ineffective assistance of counsel. In addition to the Petition, Miranda-Ortiz filed a 31-page memorandum in support of the Petition, an Affidavit, and a Declaration with seven exhibits. During the pendency of the Petition, Miranda-Ortiz has filed numerous Motions for discovery or to clarify Court orders, for declaratory or summary judgment, and to “notice” things he alleges the Government has done wrong.[2]Respondent filed a response to the § 2255 Motion, and also asked the Court to place Miranda-Ortiz on the restricted filer list because of his numerous filings. Miranda-Ortiz filed a response to the Government's response, another Affidavit, and another Declaration. This matter is fully submitted.


         Federal prisoners may collaterally attack their convictions or sentences

on 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 sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255(a). But a motion under § 2255 is available only in limited circumstances.

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. A movant may not raise constitutional issues for the first time on collateral review without establishing both cause for the procedural default and actual prejudice resulting from the error.

United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citations omitted). While a federal prisoner may raise claims of ineffective assistance of counsel in a § 2255 motion, other constitutional errors should be, and indeed must be, raised on direct appeal or risk dismissal as procedurally defaulted. See id. at 1076; see also Massaro v. United States, 538 U.S. 500, 509 (2003) (holding that “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255”). Here, Miranda-Ortiz's direct appeal claimed error only in the denial of his various motions to withdraw his plea. Thus, it is likely that the other constitutional errors his Motion claims have been procedurally defaulted and are subject to denial on that basis alone.

         A. Ineffective Assistance of Counsel

          To be entitled to relief based on ineffective assistance of counsel, Miranda-Ortiz must show that (1) his counsel's performance fell below an objective standard of reasonableness and (2) there is a “reasonable probability that, but for [his] counsel's . . . errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The Court must evaluate a lawyer's performance without the benefit of hindsight, and there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. A criminal defendant is entitled to competent representation, but the Constitution “does not insure that defense counsel will recognize and raise every conceivable” argument. Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005) (quotation omitted).

         Many of the 74 instances of allegedly ineffective assistance of counsel arise out of Miranda-Ortiz's plea agreement, and thus appear to be directed to the attorney who represented him through the plea proceeding, although Miranda-Ortiz does not specify which attorney's conduct he challenges in any of the 74 subparts of Ground One.

         Miranda-Ortiz claims that his counsel did not explain the essential elements of the offense (Mot. to Vacate (Docket No. 203) at Ground One (7)), failed to explain to him that he could plead guilty without a plea agreement (id. (8)), did not object to the constitutional validity of the plea (id. (6)), did not properly counsel Miranda-Ortiz regarding the waiver of his right to a trial and waiver of other unspecified rights (id. (9), (27)), did not “force” the prosecution to prove the elements of the offense beyond a reasonable doubt (id. (10)), did not challenge Miranda-Ortiz's admissions at the plea hearing as insufficient to support a conviction (id. (11)), did not properly move to withdraw the plea (id. (12), (17), (20), (21), (22), (37)), did not object that there was a lack of factual basis for the plea or that the elements of the offense had not been established and did not adequately explain the elements to Miranda-Ortiz (id. (28), (44), (45), (46), (57)), and generally failed in his duties to Miranda-Ortiz with regard to the plea (id. (13), (14), (15), (31), (32), (36), (41), (52), (53)).

         Miranda-Ortiz also contends that his attorney rendered ineffective assistance with regard to the forfeiture, claiming that counsel did not ensure that the amount sought was the correct amount taken from Miranda-Ortiz (id. (26), (33)), misled Miranda-Ortiz by telling him that he would get the money back after sentencing (id. (35)), and misinformed Miranda-Ortiz about the true nature of the charges and forfeiture (id. (34)). He claims that his attorney failed to properly conduct discovery, motion practice, and did not sufficiently research his case (id. (15), (16), (38), (39), (43), (48), (61), (65), (68), (72), (73)). He complains that the attorney failed “to provide written opinion letters” (id. (25)). He asserts that his attorney did not provide an interpreter (id. (24)), failed to notify him of his rights under the Vienna Convention (id. (29)), and failed to raise the Vienna Convention violations to the Court (id. (30)). He also claims that his attorney did not move to quash the Complaint (id. (62)), failed to challenge the sufficiency of the Indictment (id. (64)), and failed to challenge venue (id. (74)).

         He believes that his attorney should have pursued DEA agents for alleged violations of 21 U.S.C. § 883 and § 19.6 of the Code of Ethics for government employees (id. (23)). He asserts that the attorney deceived him by telling Miranda-Ortiz that drugs were found in his residence (id. (18)), and by claiming an irretrievably broken relationship when in fact the attorney was incompetent and “defendant had caught him on deceptive misrepresentation” (id. (50)). He claims that the “acts and conduct of trial counsel prejudiced the petitioner and preclude of the right to a fair and impartial trial” (id. (67)).

         Several of the allegations appear to be directed at the attorneys appointed to represent Miranda-Ortiz after he attempted to withdraw the plea until his direct appeal. He contends that his attorneys did not go over the presentence investigation report with him and did not object to it as he instructed (id. (40), (66)), and did not review the statement of reasons with him (id. (58)). He claims that they did not pursue all the grounds he wished to pursue on appeal (id. (49)), including that plea hearing did not establish the elements of the offense (id. (47)), alleged Rule 11 violations (id. (42), (63)), “the issue of misapplication of statutes and laws” (id. (69)), Rule 32.2 and due-process errors at the sentencing proceeding (id. (56)), and the denial of a two-point reduction for acceptance of responsibility (id. (70)). He argues that his attorneys did not pursue adequate remedies for the forfeiture of his property (id. (54), (55)).

         In addition to these relatively specific allegations, Miranda-Ortiz raises broad allegations regarding the assistance he received from his attorneys. He contends that they failed to act honestly and in good faith (id. (1)), “fraudulent misrepresentation” (id. (2)), “[d]ishonest service” (id. (3)), failed to exercise “reasonable degree of care and skill” (id. (4)), “[f]ailed to obedience the Constitution and laws of the United States” (id. (5)), failed “to challenge the way matter and form of deprivation of fifth amendment, due process and sixth amendment right to trial” (id. (19)), failed to “ensure that the defendant had received the adequate due process requirement in all-stage of the criminal proceeding” (id. (51)), failed to subject the prosecutor's case to “meaningful adversarial ...

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