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Suarez v. United States

United States District Court, E.D. Missouri, Eastern Division

December 28, 2017

EMMANUEL SUAREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Emmanuel Suarez's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1] and Motion for Relation Back Amendment Pursuant to Fed R. Civ. P. 15(c) for Clarification [8].

         I. BACKGROUND

         Petitioner Emmanuel Suarez and the U.S. Government agreed the following facts could be proven beyond a reasonable doubt by the U.S. Government in trial.[1] On February 13, 2015, an undercover detective agreed to meet D.P. at a retail shopping center in Hazelwood, Missouri. D.P. arrived in a vehicle driven by Emmanuel Suarez. The detective exited his vehicle and entered the vehicle driven by Suarez. While inside the vehicle, the detective purchased heroin and cocaine from D.P. in exchange for $1320. D.P. asked Suarez to act as lookout while the detective counted out the money. During the transaction, the detective noted Suarez was in possession of a semi-automatic pistol. D.P. discussed selling the pistol to the detective, showing the detective the magazine was fully loaded and that there was a round in the chamber. The detective then exited the vehicle.

         At the time of this transaction, Suarez was a previously-convicted felon. He had entered a guilty plea on November 17, 2006 for one count of Burglary in the First Degree, one count of Stealing a Motor Vehicle, and one count of Theft of a Credit Card.[2] All three offenses are felony offenses, each punishable by a term of imprisonment exceeding one year.

         II. PROCEDURAL HISTORY

         Suarez was arrested on February 27, 2015 following the issuance of a Criminal Complaint. On March 4, 2015, a grand jury charged him with seven counts alongside D.P.: Count I, Conspiracy to Possess with the Intent to Distribute Heroin; Count II, Conspiracy to Possess with the Intent to Distribute Cocaine; Count III, Distribution of Heroin; Count IV, Distribution of Cocaine; Count VI, Possession of a Firearm in Furtherance of a Drug Trafficking Crime; Count VIII, Felon in Possession of a Firearm; and Count XII, Felon in Possession of a Firearm. The U.S. Government moved Suarez be detained without bail pending trial, arguing he was a danger to the community. U.S. Judge Shirley Mensah held a detention hearing, whereby a police detective with the St. Louis County Police Department testified regarding an incident in which Suarez shot and injured his sister's boyfriend on March 1, 2014. Judge Mensah found there was probable cause to believe the incident had occurred and that at the time of the shooting, Suarez had been on parole. Judge Mensah ordered Suarez be detained without bail pending trial.

         On July 29, 2015, Suarez appeared before this Court and entered a plea of guilty to three of the charges against him in accordance with the parties' Guilty Plea Agreement: Count III, a lesser offense necessarily included in Count VI, [3] and Count VIII. In exchange, the U.S. Government agreed to move to dismiss Counts I, II, IV, and XII at the time of sentencing. The Agreement also stated the U.S. Government agreed that:

no further federal prosecution will be brought in this District relative to the defendant's participation in a conspiracy to distribute heroin and/or cocaine between August 2014 and the date of entry of this plea; nor as to his actual distribution of heroin and/or cocaine on any date between August 2014 and the date of entry of this plea; nor as to his possession or use of any firearm, either in conjunction with any drug trafficking offense or otherwise, on February 13, 2015, of which the government is aware at this time.

         The parties further stipulated they had reached an agreement as to the U.S. Sentencing Guidelines Total Offense Level analysis as a result of negotiation, which led to Suarez's guilty plea. The parties agreed either party could request a sentence above or below the sentence calculated by the U.S. Sentencing Guideline Range. However, ultimately, the parties agreed to make a non-binding sentencing recommendation of 120 months imprisonment, a sentence greater than the sentence provided by the U.S. Sentencing Guidelines and ultimately recommended by the Probation Office's presentence report in this case.

         On October 26, 2015, this Court sentenced Suarez to 120 months imprisonment. Following sentencing, counsel for Suarez filed a Notice of Appeal and a brief pursuant to Anders, in which counsel argued Suarez's plea was not knowing and voluntary. See Anders v. California, 386 U.S. 738 (1967). On June 17, 2016, the Eighth Circuit affirmed this Court, stating there were “no non-frivolous issues for appeal.” U.S. v. Suarez, No. 15-3620, (June 20, 2016). On May 23, 2017, Suarez filed this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1], arguing ineffective assistance of counsel.

         III. STANDARD

         A federal prisoner who seeks relief under 28 U.S.C. § 2255 on grounds “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). In order to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory violation constituting “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).

         Claims brought under § 2255 may be limited by procedural default. Generally, a petitioner “cannot raise a non-constitutional or non-jurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not.” Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). It is also well-established a petitioner's ineffective assistance of counsel claim is properly raised under § 2255, rather than on direct appeal. United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006); United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir. 2003). To prevail on an ineffective assistance of counsel claim, a convicted defendant must first show counsel's performance “fell below an objective standard of reasonableness.” Strickland v. ...


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