Flores v. United States of America

Background

Ambiorix Duval Flores, representing himself, filed a petition under 28 U.S.C. § 2255 asking the court to vacate, set aside, or correct his conviction. He had pleaded guilty to conspiring to distribute more than 400 grams of fentanyl, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The court sentenced him to 60 months in prison after applying a stipulated Guidelines range of 70 to 87 months and safety-valve relief from the otherwise applicable 10-year mandatory minimum. Flores did not appeal.

The prosecution arose from a February 2020 fentanyl sale in Manhattan involving Flores, a confidential informant working with the Drug Enforcement Administration, and another person. The pills delivered weighed approximately 1.5 kilograms. Flores later admitted under oath that he delivered drugs in Manhattan and pleaded guilty after a plea proceeding that complied with Federal Rule of Criminal Procedure 11.

Flores’s claims

Flores alleged that his lawyer was ineffective in three ways: by failing to investigate where the crime occurred and whether the federal government had territorial jurisdiction; by signing a waiver of indictment in the lawyer’s own name; and by failing to challenge a criminal complaint signed by John J. Kerwick, whom Flores described as a local officer not authorized to enforce federal law.

Ineffective-assistance claims are evaluated under the two-part test from Strickland v. Washington. A petitioner must show both that the lawyer’s performance fell below reasonable professional standards and that the alleged error probably affected the result.

Waiver based on the guilty plea

The court first held that Flores’s claims concerned events before his guilty plea. Because Flores entered an unconditional guilty plea and did not allege that the challenged conduct made his plea involuntary or unintelligent, the plea waived these claims. The court also noted that Flores’s plea agreement preserved ineffective-assistance claims but waived other challenges to a sentence of 87 months or less.

Merits of the claims

The court nevertheless addressed the claims on their merits.

For the territorial-jurisdiction claim, the court held that counsel was not ineffective for failing to investigate further. Flores delivered the drugs in Manhattan, which is within the Southern District of New York, and the federal statutes under which he was charged criminalized the conduct. Further investigation could not have changed those facts, so Flores could not show deficient performance or prejudice.

For the indictment-waiver claim, the record showed that counsel signed the form on Flores’s behalf after discussing it with him and receiving his permission. During the arraignment, Flores was under oath, was advised about his right to a grand-jury indictment, confirmed that he understood the waiver, and confirmed that he voluntarily authorized counsel to sign. The court therefore found no ineffective assistance. It also rejected any separate constitutional challenge to the waiver, finding that the claim was waived, procedurally defaulted, and meritless because the waiver was knowing and voluntary.

For the claim concerning the criminal complaint, the court found that Kerwick was a task-force officer with the Drug Enforcement Administration and therefore a federal law-enforcement officer. The court also held that the rules did not require the person who swore to a criminal complaint to be a federal officer or even a law-enforcement officer. The complaint was approved and filed by a federal prosecutor and met the applicable requirements. A challenge based on Flores’s theory would have been frivolous, so counsel was not ineffective and Flores suffered no prejudice.

Disposition

Judge Karas dismissed the petition with prejudice. The clerk was directed to enter judgment for the United States in Case No. 22-CV-4040 and close that case. The court declined to issue a Certificate of Appealability because Flores had not made a substantial showing that a constitutional right was denied. The court also certified that an appeal from the judgment on the merits would not be taken in good faith.