United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 56) filed by the defendant, Luis Jordan. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.
The defendant was charged by indictment with two counts of distributing 5 or more grams of methamphetamine (actual), and one count of possessing with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine. Filing 1. The defendant pled guilty, pursuant to a plea agreement, to one of the distribution charges. Filing 18; filing 19. And at his change of plea hearing, the defendant was advised of his rights, including but not limited to his right to remain silent, his right to plead not guilty, his right to a jury trial, his right to counsel, and his confrontation rights. Filing 23 at 7-9. He was advised of the nature of the charges and the potential penalties. Filing 23 at 3-4, 13-14. He was advised of the provision of the plea agreement waiving the right to appeal or collaterally attack the sentence. Filing 23 at 21-22. And he was questioned regarding his understanding of the plea agreement. Filing 23 at 17-23. He was also informed of the factual basis for the plea, and agreed with it. Filing 23 at 23-25. The defendant's petition to enter a guilty plea set forth the defendant's rights, in English and Spanish, and he indicated his understanding of them. Filing 18. The defendant agreed to waive his trial rights and plead guilty. Filing 23 at 9. The Court accepted the defendant's plea, finding that it was knowing, intelligent, and voluntary. Filing 24. The defendant was sentenced to 60 months' imprisonment, which was the mandatory minimum sentence for the offense. Filing 47 at 2; filing 48 at 1.
The defendant claims that his counsel was constitutionally ineffective. Specifically, he claims that his counsel was ineffective in failing to (1) advise him of his rights, (2) assure that there was a factual basis for the guilty plea, (3) provide him with an opportunity to allocute at sentencing, and (4) file a notice of appeal.
To establish a claim of ineffective assistance of counsel, the defendant must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance can be shown by demonstrating that counsel's performance fell below an objective standard of reasonableness. Id. at 688. However, the Court's scrutiny of counsel's performance is highly deferential, because the Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.
To satisfy the prejudice prong of Strickland, the defendant must show that counsel's error actually had an adverse effect on the defense. Gregg v. United States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant must do more than show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A "reasonable probability" is less than "more likely than not, " but it is more than a possibility; it must be sufficient to undermine confidence in the outcome of the case. Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008).
In the context of a challenge to a guilty plea, the deficient performance and prejudice are demonstrated if the defendant can prove that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-60 (1985); Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir. 2011).
FAILURE TO ADVISE OF RIGHTS
The defendant claims that he was not advised of his constitutional rights, pursuant to Boykin v. Alabama, 395 U.S. 238 (1969) and Fed. R. Crim. P. 11. Specifically, the defendant claims:
The failure advise Petitioner of Boykin trial rights, guaranteed to him by the Fifth and Sixth amendments, resulted in an unknowing and involuntary guilty plea in violation of the Dur Process Clause of the Fifth Amendment. The failure to advise Petitioner pursuant to Rule 11 of the Federal Rules of Criminal Procedure resulted in an invalid guilty plea. The sentence should be vacate to allow petitioner if he so chooses, to enter a knowing, intelligent and voluntarily guilty plea ...