United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on Defendant Reynaldo
Urbina-Sortres's Motion to Vacate under 28 U.S.C.
(“§ 2255 motion") (Filing No. 259). Also,
before the Court is an ECF filing entitled, “Motion for
Speedy Trial or Dismissal” (Filing No. 258).
4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts requires
initial review of a § 2255 motion, and describes the
initial review process:
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.
Defendant pled guilty to Counts I and II of an Information
charging him with conspiracy to distribute 5 grams or more of
methamphetamine and an amount of marijuana (Count I) and
illegal re-entry by a person convicted of an aggravated
felony (Count II). On January 6, 2015, Paul J. Forney filed
an appearance as the Defendant's retained counsel, but,
on May 18, 2015, withdrew his appearance due to a confilct.
On May 22, 2015, Marti S. Sleister was court-appointed as
counsel for the Defendant and remained as his counsel
throughout the remainder of the proceedings.
Defendant entered into a binding plea agreement under Federal
Rule of Criminal Procedure 11(c)(1)(C) for a term of
incarceration of 70 months which included a waiver of the
right of appeal and collateral attack (Filing No. 210 at 4,
Petition to Enter a Plea of Guilty, Dated: September 1, 2015,
the Defendant stated under oath: He had enough time to talk
with his attorney; he was satisfied with the job his attorney
had done; he had no objections to the way his attorney had
represented him; he knew he had a right to plead not guilty
and proceed to trial with all accompanying constitutional
rights; he was aware that the maximum statutory term of
imprisonment for Count I was 40 years and for Count II was 20
years; and he understood all the questions in the Petition.
(Filing No. 209. at 2, 6). On September 1, 2015, the
Defendant's plea was accepted and he was found guilty of
Counts I and II of the Information.
sentencing hearing was held on November 23, 2015. The Court
accepted the Plea Agreement and the Defendant was sentenced
to a term of 70 months on Count I and term of 70 months on
Count II, to run concurrently, with four (4) years of
supervised release on Count I and one (1) year of supervised
release on Count II to follow, with those terms to run
5, 2016, the Defendant filed his timely § 2255 motion
(Filing No. 259).
§ 2255 motion
§ 2255 motion, the Defendant alleges two grounds in
support of his motion: (1) Fast Track Early Release Program,
and (2) Ineffective Assistance of Counsel. Defendant asserts
that his attorney did not care about the case and committed a
plethora of errors affecting the Defendant's decision to
enter the guilty plea. The Defendant also states that his
attorney never advised him of his right of appeal.
order to establish ineffective assistance of counsel, the
Defendant must satisfy both prongs of the test articulated by
the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The performance prong
requires a showing that counsel performed outside the wide
range of reasonable professional assistance and made errors
so serious that counsel failed to function as the kind of
counsel guaranteed by the Sixth Amendment. Id. at
687-89. The prejudice prong requires a movant to demonstrate
that seriously deficient performance of counsel prejudiced
the defense. Id. at 687.
the Defendant's plea agreement, he waived his right to
seek post-conviction relief except for (a) “The right
to timely challenge the defendant's conviction and the
sentence of the Court should the Eighth Circuit Court of
Appeals or the United States Supreme Court later find that
charge to which the defendant is agreeing to plead guilty
fails to state a crime.” or (b) “The right to
seek post-conviction relief based on ineffective assistance
of counsel.” (Filing No. 210 at 5.) The Defendant
adopted the Presentence Investigation Report (Filing No.
231), in which the Defendant received the following
reductions: a ...