Tenth discusses divisibility and the modified categorical approach, and rejects 2255 petitioner's ineffective assistance of counsel claim

U.S. v. Rodriguez, 2014 WL 5201900 (10/15/14) (Okl.) (Published) - In the context of a § 2255, the 10th discusses divisibility and the modified categorical approach. Mr. Rodriguez alleged his attorney should have argued the Texas assault statute was indivisible and therefore not amenable to the modified categorical approach. The Texas statute criminalizes both intentional and reckless conduct. If Mr. Rodriguez had been convicted of reckless conduct the conviction would not count for career offender purposes. Trial counsel acknowledged the statute was divisible, but argued Mr. Rodriguez's blanket guilty plea to the indictment, which charged both intentional and reckless assault, did not show which kind of assault Mr. Rodriguez was necessarily convicted of. The 10th had ruled that he was convicted of both kinds. The 10th pointed out counsel's strategy was not a bad one, because the almost identical argument prevailed in the Fifth Cirucit two months later in U.S. v. Espinoza, 733 F.3d 568 (2013). Also, counsel was not wrong for failing to argue indivisibility based on Descamps and Marrero, which remanded a modified categorical approach case in light of Descamps. Those cases, the 10th holds, didn't have any bearing on what statutes were or were not divisible. And the 10th had already held in U.S. v. Zuniga-Soto, 527 F.3d 1110 (2008), that the Texas assault statute was divisible. The 10th also held counsel's failure to seek certiorari could not be the basis for relief because there is no constitutional right to effective assistance of counsel for certiorari review.