USA vs. Galan, (5th Cir. 1998)
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* Pursuant to 5 TH C IR . R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. 2 United States v. Galan , 82 F.3d 639 (5th Cir. 1996).
UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 97-31301 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS ARNOLDO OZUNA GALAN, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-1948 December 23, 1998 Before WISDOM, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM: * Arnoldo Ozuna Galan pleaded guilty to conspiracy to escape from a federal prison and was sentenced to 37 months in prison. Galan§ 2255. The district court denied the motion. Galan now appeals, asserting three assignments of error.
First, Galan contends that he received ineffective assistance of counsel at sentencing. Galan contends that the objections to the presentence investigative report (PSR) filed by his counsel resulted in an increase hi s sent ence. As part of a plea agreement, the United States agreed not to oppose GalanÂ’s contention that he had no aggravating role in the offense, and that he should be sentenced at the low end of the applicable guideline range. The PSR recommended that Galan receive a two- level reduction for acceptance of responsibility and a four-level increase for acting as an organizer of the criminal activity. GalanÂ’s counsel objected to the PSR, asserting that Galan was not an organizer of the conspiracy.
The probation officer c o nsidered these objections equivalent to a denial of GalanÂ’s responsibility, and filed an amended PSR that did not include a two-level reduction for acceptance of responsibility. As a result of the amended PSR, the guideline range changed from 24 to 30 months in prison to 30 to 37 month s. Galan was sentenced to 37 months. Galan now contends that the objections could not po ssibly have proved beneficial to Galan, and that making the objections, without calling witnesses who could have supported the objections, constituted ineffective assistance of counsel.
To prevail on a claim o f ineffective assistance of counsel, Galan must show that counsel’s performance was deficient, and that this deficient performance prejudiced Galan at sentencing. 3 Galan’s contention is that his counsel was ineffective fo r failing to call witnesses who would have testified that Galan was not an organizer of the conspiracy. The failure to present mitigating evidence at sentencing is not per se ineffective assistance of counsel. 4 As Galan has made no other complaint of deficient performance at sentenci ng, he has failed to meet the first prong of S trickland , and the assignment is without merit. Galan’s sec o nd contention is that his trial counsel had an actual conflict of interest. This contention arises from counsel’s representation of both Galan and a codefendant, Fabian Ortiz. Galan argues that he is entitiled to withdraw his guilty plea as a result of this conflict, and cites this Court to Perillo v. Johnson . 5 The defendant in Perillo did not enter a guilty plea. “Once a guilty plea has been entered, all nonjurisdictional defects in the proceedings against a defendant are waived. This includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilt y plea.” 6 As Galan has never contested the voluntariness of his plea, the allegation of ineffective assistance through conflict of interest is without merit.
Finally, Galan contends that he is entitled to discovery and an evidentiary hearing to prove the facts supporting his claims. A district court§2255 proceeding is reviewed for an abuse of discretion. 7 As Galan is not entitled to relief on either issue on appeal, there was no need for the district court to hold an evidentiary hearing. 8 AFFIRMED.
3 Strickland v. Washington , 466 U.S. 668 (1984) and Spriggs v. Co llins , 993 F.2d 85, 88 (5th Cir. 1993). 4 R ector v. Johnson , 120 F.3d 551, 564 (5th Cir. 1997) see also Alexander v. McCotter , 775 F.2d 595, 602 (5th Cir. 1985). 5 79 F.3d 441 (5th Cir. 1996)
6 Smith v. Estelle , 711 F.2d 677 (5th Cir. 1983)(cites omitted)(emphasis in original). 7 United States v. Bartholemew , 974 F.2d 39, 41 (5th Cir. 1992). 8 United States v. Boniface , 631 F.2d 1228, 1229 (5th Cir. 1980)
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Charles Rector, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 120 F.3d 551 (5th Cir. 1997)
- U.S. Court of Appeals for the Fifth Circuit - Pamela Lynn Perillo, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 79 F.3d 441 (5th Cir. 1996)
- U.S. Supreme Court - Strickland v. Washington, 466 U.S. 668 (1984)
- U.S. Court of Appeals for the Fifth Circuit - United States of America, Plaintiff-Appellee, v. Arnoldo Ozuna Galan, Defendant-Appellant., 82 F.3d 639 (5th Cir. 1996)
- U.S. Court of Appeals for the Fifth Circuit - United States of America, Plaintiff-Appellee, v. Wayne F. Bartholomew, Defendant-Appellant., 974 F.2d 39 (5th Cir. 1992)
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