Velasquez v. United States

Background

Carlos Jose Zavala Velasquez, representing himself in this proceeding, filed a petition under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his criminal sentence based on ineffective assistance of counsel. He had been a high-ranking member of the Honduran National Police. He pleaded guilty to participating in a cocaine-importation conspiracy involving conduct from 2009 to 2012. The plea agreement did not include a separate 2014 conspiracy involving two confidential sources of the Drug Enforcement Administration.

The recommended sentencing range was 210 to 262 months. Counsel requested a sentence of time served, and the court imposed a 144-month sentence followed by three years of supervised release. Before accepting the plea, the court questioned Velasquez about his post-traumatic stress disorder, decision-making, understanding of the plea, and involvement in the charged conduct. Velasquez confirmed that he understood the proceeding and admitted helping distribute and transport drugs intended for the United States.

Claims and Analysis

Velasquez raised three ineffective-assistance claims. To prevail, he had to show both that counsel’s performance fell below an objectively reasonable standard and that the alleged errors likely changed the outcome.

Public-authority defense. Velasquez argued that counsel failed to investigate and present his claim that his conduct was authorized by Honduran law enforcement. The court found that counsel had investigated this defense by obtaining an affidavit, an audio recording, and text messages, presenting material to the Government, and negotiating a plea agreement that excluded the 2014 conspiracy. The court found that the later affidavits submitted by Velasquez did not support a public-authority defense to the charged conspiracy. The court also rejected the argument that counsel gave inadequate advice about the defense, noting that counsel repeatedly raised it and discussed it in the sentencing submission. Velasquez could not show prejudice because he provided no evidence creating a reasonable probability that the defense would have succeeded or that he would have rejected the plea and gone to trial.

Jurisdiction. Velasquez argued that counsel should have challenged jurisdiction based on the public-authority defense, his surrender to the United States, the original indictment, and his waiver of indictment and plea to an information. The court held that a public-authority defense is an affirmative defense, not a jurisdictional issue. It also held that the Surrender Agreement stated that Velasquez traveled voluntarily and waived extradition proceedings, and that the circumstances he identified did not deprive the court of jurisdiction. The court rejected his argument about the translation of the agreement because he did not claim that it was not translated or was translated incorrectly, and any alleged statutory violation would not have been jurisdictional. The court further held that a charging instrument need not name co-conspirators and that Velasquez knowingly and validly waived indictment before pleading guilty to the information.

Competency hearing. Velasquez argued that counsel should have requested a competency hearing because of his post-traumatic stress disorder. The court found that counsel had submitted mental-health information, including a psychiatric evaluation, and that Velasquez’s statements and demeanor showed that he understood the proceedings and could consult with counsel. The record did not show a reasonable basis to believe that he was incompetent or that a competency hearing would have changed the outcome.

Disposition

The court denied the § 2255 petition. It did not hold a hearing because the motion and the existing record did not present a genuine factual dispute requiring one. The court also stated that a certificate of appealability would not issue, certified that an appeal from the judgment on the merits would not be taken in good faith, denied permission to appeal without paying filing fees, and directed the Clerk to close the motion at Docket 442.