United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE.
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing
65) filed by the defendant, Francisco Samuel Nava
Hernandez. 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.
§ 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.
defendant was charged with one count of possessing over 50
grams of a mixture or substance containing methamphetamine
with intent to distribute it, in violation of 21 U.S.C.
§ 841(a)(1). Filing 17. He petitioned to enter
a guilty plea; the petition set forth his rights in English
and Spanish. Filing 30. And the interpreter who
interpreted between the defendant and his counsel certified
that he had translated the indictment, petition, and
Sentencing Guidelines to the defendant. Filing 30 at
16-17. At his change of plea hearing, the defendant was
again advised of his rights in a detailed colloquy pursuant
to Fed. R. Crim. P. 11(b), again with the assistance
of an interpreter. See filing 34.
counsel, the defendant moved for a variance from the
Sentencing Guidelines based on the fact that in a state DUI
proceeding, where he had been represented by different
counsel, he had been poorly advised to plead guilty to the
DUI charge. See, filing 37; filing 39. The
defendant contended that the resulting two criminal history
points increased his Guidelines range and cost him an
opportunity to qualify for safety valve relief. Filing 39
at 1-4. The Court explained that "the federal court
is not a place to collaterally attack a state court plea,
" but that the Court would consider the deficiency in
the state court proceeding under 18 U.S.C. § 3553(a).
Filing 60 at 23. Applying the § 3553(a)
factors, the Court imposed a Guidelines sentence of 97
months' imprisonment. Filing 50 at 2; filing
51 at 1. The Court asked whether either party wanted any
further elaboration of the reason for the sentence, and both
parties (through counsel) declined. Filing 60 at 25.
defendant appealed through counsel, arguing in part that the
Court erred because it did not adequately explain its reasons
for imposing the sentence and did not address his arguments
supporting his variance motion. See United
States v. Nava Hernandez, No. 15-2953, 2016 WL 3553287,
at *1 (8th Cir. June 30, 2016). The Court of Appeals rejected
those arguments and affirmed the defendant's conviction
and sentence. See id.
defendant presents three postconviction claims: (1)
ineffective assistance of counsel with respect to his state
DUI conviction, (2) the Court's alleged failure to
consider mitigating factors, and (3) waiving his rights
without a full understanding of the waiver. The Court will
address each claim in turn.
ASSISTANCE OF COUNSEL
defendant claims that his counsel was constitutionally
ineffective. 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
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).
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 ...