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Hernandez v. United States

United States District Court, S.D. West Virginia, Beckley Division

February 6, 2019




         The Court has reviewed the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document 75), brought on the grounds, inter alia, that his counsel was ineffective, that he was improperly sentenced as a career offender, and that he should have been permitted to withdraw his guilty plea. The Court has also reviewed the Petitioner's Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Document 76), the Response of the United States to Movant Rhinelander Hernandez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document 80), and the Reply of the Movant to the United States' Response to the Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document 86). For the reasons stated herein, the Court finds that the Petitioner's motion should be denied.


         The Petitioner, Rhinelander Hernandez, was indicted on February 24, 2015, on charges of distribution of cocaine and distribution of heroin. On May 13, 2015, the United States filed an Information pursuant to 21 U.S.C. § 851, alleging that Mr. Hernandez was subject to enhanced penalties due to a prior felony drug conviction. On May 28, 2015, Mr. Hernandez's original attorney, an Assistant Federal Public Defender, sought to withdraw, and the Magistrate Judge appointed Stephen O. Callaghan, a member of the CJA panel.

         Mr. Hernandez entered into a plea agreement with the United States, wherein he agreed to plead guilty to Count Two of the Indictment, or the distribution of heroin. The United States agreed to dismiss Count One and the § 851 Information. During a plea hearing held on August 18, 2015, Mr. Hernandez indicated that he was satisfied with his counsel and stated the factual basis of his plea. He explained that he sold one or two stamps of heroin to a “[a] guy named Tattoo” on December 2, 2014 at a Go-Mart in Beckley, West Virginia, after arranging the transaction on the internet. (Plea Tr. at 12:4-13:7) (Document 58.) The Court explained the maximum potential penalties and advised Mr. Hernandez that the United States' agreement to dismiss the § 851 Information would have no bearing on whether a career offender enhancement would apply under the Guidelines. Mr. Hernandez stated that he understood the potential penalties. He also assured the Court that he understood the terms of the appellate waiver contained in his plea agreement, including his agreement to waive the right to appeal any sentence that did not exceed the statutory maximum.

         Mr. Hernandez appeared for his scheduled sentencing hearing on December 2, 2015. At the beginning of the hearing, Mr. Callaghan informed the Court that Mr. Hernandez had requested a continuance, wanted to withdraw his plea, and requested new counsel. Mr. Callaghan described, in general terms, his interactions with his client, including discussions prior to both the plea and the sentencing. Mr. Hernandez indicated that he wished to withdraw his plea and be appointed new counsel because he believed he could not have been convicted of the charge to which he pled guilty. The Court found no legitimate legal basis to support a continuance, withdrawal of the guilty plea, or appointment of new counsel under the applicable legal standard for each issue.

         Mr. Hernandez, by counsel, objected to the use of a state conviction for conspiracy to commit a felony as a predicate controlled substance offense for purposes of the career offender provision of the Guidelines. The Court overruled the objection, finding the state statute divisible and concluding that it was appropriate to consider the felony the defendant was convicted of conspiring to commit-here, delivery of a Schedule II narcotic controlled substance. Because of his career offender status, Mr. Hernandez's Guideline sentencing range was 151-188 months. The Court varied downward to impose a sentence of 120 months.

         Mr. Hernandez filed a direct appeal. The Fourth Circuit appointed attorney John Hampton Tinney, Jr., to represent him on appeal. Mr. Tinney filed an Anders brief, suggesting that application of the career offender provision may have been in error. Mr. Hernandez filed a pro-se brief, similarly arguing that he should not have been sentenced as a career offender and that his attorney was ineffective. On August 12, 2016, the Fourth Circuit dismissed Mr. Hernandez's appeal in an unpublished opinion, concluding that the appellate waiver in Mr. Hernandez's plea agreement precluded consideration of the career offender enhancement. The Fourth Circuit further found that no ineffective assistance of counsel was apparent from the record, and that issue could be more fully explored in a § 2255 petition.

         Mr. Hernandez brought his motion pursuant to 28 U.S.C. § 2255 on May 22, 2017. The Magistrate Judge directed the United States to file an answer, and the United States' answer to the motion was filed on October 24, 2017. The motion is fully briefed and ripe for ruling.


         Motions pursuant to 28 U.S.C. § 2255 permit federal prisoners to challenge their convictions or sentences, usually within one year after the judgment becomes final. “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 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(a). The petitioner bears the burden of proving, by a preponderance of evidence, that he is entitled to relief under §2255. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). However, “a criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.” United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Where the motion, files, and records in the case “conclusively show that the prisoner is entitled to no relief, ” no hearing is required. 28 U.S.C. § 2255(b).


         Mr. Hernandez asserts that he is innocent of selling heroin to the confidential informant as alleged in the count of conviction. He states that he informed Mr. Callaghan of his innocence and sought to review a video of the transaction produced in discovery with Mr. Callaghan, but Mr. Callaghan insisted that the video clearly showed a drug transaction and advised him to plead guilty. He states that he pled guilty only because his attorney was unwilling to assist him in proving his innocence. Mr. Hernandez contends that his appellate attorney failed to review the discovery materials that showed that he had not distributed the heroin. Mr. Hernandez further asserts that his sentence as a career offender was the result of his counsel's ineffective representation. Finally, he argues that he had the right to withdraw his guilty plea because the Court deferred acceptance of his plea agreement pending review of the presentence investigation report.

         In response, the United States points to the plea colloquy, wherein Mr. Hernandez set forth a factual basis for his plea, as well as assuring the Court that he was competent to plead guilty and was doing so knowingly and intelligently. The United States contends that the appellate waiver bars further argument or consideration related to Mr. Hernandez's career offender designation or the denial of his motion to withdraw his guilty plea. After summarizing the record, particularly Mr. Hernandez's responses to questions during both the plea and the sentencing hearings, the United States contends that there is no evidence to support the ineffective assistance of counsel claim. Finally, the United States notes Mr. Callaghan's success in negotiating ...

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