Juan Jimenez v. United States ( 2008 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    JUNE 30, 2008
    No. 07-10563                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket Nos. 06-00875-CV-ORL-19-DAB
    05-00031-CR-ORL-19-KRS
    JUAN JIMENEZ,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (June 30, 2008)
    Before ANDERSON, HULL and PRYOR, Circuit Judges.
    PER CURIAM:
    Juan Jimenez, a former federal prisoner proceeding pro se, appeals the
    district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence based
    on ineffective assistance of counsel. After review, we affirm.
    I. BACKGROUND
    In 2005, Jimenez was charged with illegally reentering the United States
    after previously having been deported, in violation of 8 U.S.C. § 1326(a) and
    (b)(2). Jimenez pled guilty to the illegal reentry charge in federal district court in
    Florida.1 In September 2005, Jimenez was sentenced to 33 months’ imprisonment
    and 2 years supervised release. Jimenez did not file a direct appeal.
    Instead, in 2006, he filed a § 2255 motion to vacate his sentence. Jimenez’s
    motion to vacate argued, inter alia, that the lawyer on the illegal reentry charge,
    Stephen Langs, rendered ineffective assistance by failing to properly investigate
    and discover evidence establishing that Jimenez is actually a United States citizen
    (and not a citizen of Mexico, as the government contended in the illegal reentry
    proceedings).
    More specifically, Jimenez, who was born in Mexico as the son of an
    American citizen (his father) and a Mexican citizen (his mother), argued that Langs
    advised him that after reviewing all relevant material and law, Jimenez had no
    legal recourse for challenging the illegal reentry charge against him. As such,
    1
    There was no written plea agreement.
    2
    Jimenez pled guilty to the illegal reentry charge upon Langs’s advice.
    Subsequent to his guilty plea, however, Jimenez himself discovered an
    affidavit in his Immigration and Naturalization Service (“INS”) file from his father
    that stated, inter alia, that Jimenez’s mother and Jimenez’s father “had personal
    problems and eventually she remarried and so did I.” (Emphasis added.) Jimenez
    argued that this affidavit, along with affidavits from other family members,
    constituted evidence that Jimenez’s parents had been married under the common
    law of Texas at the time of Jimenez’s birth, such that Jimenez was actually a
    United States citizen rather than a Mexican citizen at birth and therefore could not
    have illegally reentered the United States.2 According to Jimenez, Langs’s failure
    to investigate and make the argument that Jimenez was a United States citizen by
    virtue of his parents’ Texas common law marriage amounted to ineffective
    assistance of counsel.
    The district court denied Jimenez’s § 2255 motion, finding that under
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 2064 (1984),
    Jimenez failed to establish either deficient performance or prejudice. As to
    2
    For instance, an affidavit from one of Jimenez’s aunts states that Jimenez’s mother and
    father “were going to get married and I was to be a[] flower girl,” while another aunt’s affidavit
    states that Jimenez’s mother and father lived together “as man and wife in the years 1953
    through 1956 in El Paso, Texas . . . . They were planning on getting married eventually but their
    relationship fell apart and they separated.”
    3
    performance, the district court determined that Langs had undertaken “an extensive
    independent investigation into Mr. Jimenez’s background to determine whether he
    had any defense(s) to the charge.” The district court concluded that even if Langs
    had performed deficiently, Jimenez still could not establish prejudice because the
    relationship between his parents fell short of a Texas common law marriage.
    This Court granted a certificate of appealability (“COA”) on the following
    issue:
    Whether [Jimenez’s] counsel was ineffective for failing to investigate
    and advise him of a possible defense to the unlawful re-entry charge
    against him: that he might have been a United States citizen because
    his biological parents may have been married under Texas common
    law.3
    II. DISCUSSION 4
    Under Strickland’s first prong, a defendant has the heavy burden of
    demonstrating that his counsel’s performance was deficient and fell below an
    objective standard of reasonableness. See 
    Strickland, 466 U.S. at 687
    , 104 S. Ct. at
    3
    Jimenez’s brief makes certain arguments that are outside the scope of the COA. Our
    review in § 2255 cases is limited to the issues specified in the COA, and accordingly we do not
    address Jimenez’s other arguments. See Murray v. United States, 
    145 F.3d 1249
    , 1250-51 (11th
    Cir. 1998).
    4
    When reviewing a district court’s denial of a § 2255 motion, we review findings of fact
    for clear error and legal conclusions de novo. See Lynn v. United States, 
    365 F.3d 1225
    , 1232
    (11th Cir. 2004). The ultimate question of whether a criminal defendant received ineffective
    assistance of counsel is a mixed question of fact and law. Mincey v. Head, 
    206 F.3d 1106
    , 1142
    (11th Cir. 2000).
    4
    2064; see also Gordon v. United States, 
    518 F.3d 1291
    , 1297, 1301 (11th Cir.
    2008). There is a strong presumption that counsel’s performance was adequate,
    and to overcome the presumption, a defendant must show that no competent
    counsel would have taken the action that his counsel did take. 
    Gordon, 518 F.3d at 1301
    .
    Jimenez has failed to show ineffective assistance. Jimenez contends that
    Langs rendered deficient performance by failing to examine the 1952 Immigration
    and Nationality Act (“INA”), which (Jimenez further contends) should have led
    Langs to investigate whether Jimenez’s parents were married under Texas common
    law at the time of Jimenez’s birth in 1952.5 However, the record in Jimenez’s
    illegal reentry case establishes that Langs actually undertook investigation into
    Jimenez’s background specifically to determine whether Jimenez had any
    5
    Specifically, the 1952 version of the INA provided, in pertinent part, that citizens of the
    United States at birth included persons who were:
    born outside the geographical limits of the United States . . . [to] parents one of
    whom is an alien, and the other a citizen of the United States who, prior to the birth
    of such person, was physically present in the United States . . . [for a certain period
    of time].
    8 U.S.C. § 1401(a)(7) (1952) (emphasis added). However, a person only qualified as a “parent”
    under the 1952 version of the INA when, inter alia, their child was “a legitimate child” or was
    “legitimated under the law of the child’s residence or domicile, or under the law of the father’s
    residence or domicile.” 8 U.S.C. § 1101(b)(1)-(2) (1952) (also qualifying a person as a “parent”
    when the child became their stepchild before the child reached the age of eighteen). Since it is
    undisputed that Jimenez was born out of technical wedlock, the question that he argues Langs
    should have raised is whether Jimenez was “legitimated” under Texas law by virtue of his
    parents’ purported Texas common law marriage.
    5
    citizenship-based defenses to the reentry charge. Indeed, Langs’s motion to
    compel discovery in Jimenez’s illegal reentry case stated that “there were several
    means by which Mr. Jimenez could have obtained American citizenship,” but
    Langs’s investigation of those “vehicles to citizenship” had proven fruitless.
    Despite this, Langs’s motion to compel sought Jimenez’s mother’s INS file in an
    effort to explore yet another possible way in which Jimenez might have obtained
    derivative American citizenship—through his mother’s naturalization.6
    Additionally, at Jimenez’s sentencing, Langs advised the court that Jimenez was
    “likely to be deported” after serving his sentence on the reentry charge, adding that
    the impending deportation was “unfortunate” and that he had “yelled at Mr.
    Jimenez about that,” because Jimenez “had a number of opportunities to get his
    citizenship here while in the United States, and every lead that [Langs] tracked
    down through [Jimenez’s] biological father, his adoptive stepfather . . . through his
    mother and through his own marriage,” showed that Jimenez never obtained
    citizenship. (Emphasis added.)
    Thus, the record in Jimenez’s illegal reentry case establishes that Langs
    specifically explored the possibility of various citizenship-based defenses to the
    reentry charge. Moreover, although the record is silent as to whether Langs
    6
    The docket in Jimenez’s criminal case reflects that Langs’s motion to compel was
    granted.
    6
    actually explored the specific Texas common law marriage defense raised by
    Jimenez in this § 2255 case, “[a]n ambiguous or silent record is not sufficient to
    disprove the strong and continuing presumption” of counsel’s competence.
    Chandler v. United States, 
    218 F.3d 1305
    , 1314 & n.15 (11th Cir. 2000) (en banc).
    Accordingly, Jimenez has failed to establish that Langs rendered constitutionally
    deficient performance.
    Alternatively, even assuming arguendo that Langs rendered constitutionally
    deficient performance, Jimenez has also failed to establish prejudice. To satisfy
    Strickland’s prejudice prong, Jimenez must show a reasonable probability that, but
    for Langs’s alleged errors, Jimenez would not have pleaded guilty and “would
    have insisted on going to trial.” Hill v. Lockhart, 
    474 U.S. 52
    , 59, 
    106 S. Ct. 366
    ,
    370 (1985) (applying Strickland to a challenge to a guilty plea based on ineffective
    assistance).
    Here, Jimenez has failed to establish prejudice because he has failed to
    establish that his parents were in fact married under Texas common law at the time
    of his birth. Specifically, although Texas recognized common law marriage in
    1952 (and still recognizes it today), to establish a common law marriage in Texas
    in 1952, a party had to prove three elements: (1) that the couple had an agreement
    to be married; (2) that after the agreement, the couple lived together professedly as
    7
    husband and wife; and (3) that the couple was recognized by the community as
    husband and wife. See Hodge v. Hicks, 
    233 S.W.2d 557
    , 557 (Tex. 1950)
    (following Walton v. Walton, 
    228 S.W. 921
    , 922 (Tex. Comm’n App. 1921));
    Grigsby v. Reib, 
    153 S.W. 1124
    , 1125, 1130 (Tex. 1913); see also Ex parte Threet,
    
    333 S.W.2d 361
    , 364 (Tex. 1960) (citing Grigsby).
    In this case, the affidavits are at best ambiguous in terms of establishing
    that Jimenez’s parents were married under Texas common law. While the affidavit
    from Jimenez’s father does state that he and Jimenez’s mother eventually both
    “remarried” after breaking up, the affidavit also states that Jimenez was “born out
    of wedlock.” This suggests that Jimenez’s father and mother did not hold
    themselves out to others as husband and wife at the time of Jimenez’s birth. See
    
    Threet, 333 S.W.2d at 364-65
    .
    Additionally, the affidavits reflect that after Jimenez’s mother and father
    separated, Jimenez’s mother married another man, Arthur Daly, who helped to
    raise Jimenez. Under Texas law, “the act of one of the parties to an alleged
    common-law marriage in celebrating a ceremonial marriage with another person
    without having first obtained a divorce, tends to discredit the first relationship and
    to show that it was not valid.” Claveria’s Estate v. Claveria, 
    615 S.W.2d 164
    , 166
    (Tex. 1981) (emphasis added) (citing Higgins v. Higgins, 
    246 S.W.2d 271
    (Tex.
    8
    Civ. App. 1952); Nye v. State, 
    179 S.W. 100
    (Tex. Crim. App. 1915)); see also
    Williams v. Williams, 
    336 S.W.2d 757
    , 759 (Tex. Civ. App. 1960) (stating that if a
    man and a woman “had in truth and in fact entered into a common law marriage as
    alleged . . . said status or relationship of the parties could be dissolved only by
    death or by divorce”). Here, it is undisputed that both of Jimenez’s parents were
    alive when Jimenez’s mother married Daly, and Jimenez points to no record
    evidence that his father and mother ever “divorce[d].” Jimenez has not shown that
    his parents were married under Texas common law at the time of his birth.7
    III. CONCLUSION
    For the foregoing reasons, we affirm the district court’s denial of Jimenez’s
    § 2255 motion.
    AFFIRMED.
    7
    Additionally, we note that at the time of Jimenez’s birth, Texas law did “not favor, but
    merely tolerate[d], common-law marriages.” Texas Employers’ Ins. Ass’n v. Elder, 
    274 S.W.2d 144
    , 147 (Tex. Civ. App. 1955).
    9