Herrera v. United States

Background

Lenin Herrera pleaded guilty to distributing and possessing with intent to distribute at least 500 grams of cocaine. The indictment also included a firearm charge and a drug-conspiracy charge, but Herrera’s plea agreement allowed him to plead guilty only to the narcotics offense. The agreement included Herrera’s stipulation to a two-level sentencing enhancement for possessing a firearm in connection with the offense.

The stipulated guideline range, including the enhancement, was 87 to 108 months. Herrera confirmed during the plea hearing that he agreed to the enhancement and understood that he could not argue at sentencing that he had not possessed a firearm. He also waived his right to appeal or challenge a sentence of up to 108 months. The court later imposed a 70-month sentence, which was below the agreed guideline range and would have been at the bottom of the range even without the firearm enhancement.

Herrera previously filed a challenge claiming that counsel was ineffective for failing to contest the enhancement. The court denied that challenge. In this petition, Herrera raised a different ineffective-assistance claim: that counsel should have filed a notice of appeal challenging the enhancement. The Court of Appeals determined that this petition was not barred as a second or successive petition and returned it for this court’s consideration.

Legal standard

A person may use a petition under 28 U.S.C. § 2255 to challenge a federal sentence. To establish ineffective assistance of counsel, the petitioner must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance caused prejudice. When the claim concerns counsel’s failure to file a notice of appeal, the petitioner can show deficient performance by proving that counsel ignored an express instruction to appeal or unreasonably failed to consult with the petitioner about whether to appeal. In those circumstances, prejudice is generally presumed because the failure may cause the loss of the right to appeal.

Court’s analysis

The court found no evidence that Herrera instructed counsel to file an appeal. Herrera’s petition did not claim that he gave such an instruction, so the court found no need for an evidentiary hearing on that issue.

The court also found no indication that counsel unreasonably failed to consult with Herrera. At sentencing, after the court explained Herrera’s right to appeal subject to any waiver, counsel stated that he had discussed a possible appeal with Herrera and would continue discussing it with him. Herrera had never claimed that this consultation did not occur.

The court further held that, even if the consultation had been inadequate, failing to consult about an appeal of the firearm enhancement was not unreasonable under the circumstances. Herrera had pleaded guilty, agreed to the enhancement, waived appeals for sentences up to 108 months, and received a sentence below the agreed guideline range. The court also reasoned that a successful challenge could have placed Herrera at risk of facing the indictment’s mandatory minimum sentence of 120 months, rather than the 70 months he received.

Disposition

The court held that Herrera’s ineffective-assistance claim was meritless and denied the petition. It declined to issue a certificate of appealability because Herrera had not made a substantial showing that a constitutional right was denied. It also certified that any appeal would not be taken in good faith and directed the clerk to close the related cases and terminate all pending motions.