United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“§ 2255 motion”),
ECF No. 207, submitted by Defendant Jose Avalos. Rule 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
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 jury trial, Avalos was found guilty of Count I of the
Indictment, charging him with possession with intent to
distribute methamphetamine (actual) in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1). On March 16, 2015, he
was sentenced to a term of 360 months incarceration and five
years of supervised release. He filed a direct appeal,
challenging the admission of the government's expert
witness testimony at the time of trial; asserting that the
verdict was not supported by sufficient evidence; and arguing
that his sentence was substantively unreasonable. On March
24, 2016, the U.S. Court of Appeals for the Eighth Circuit
affirmed the conviction and sentence.
§ 2255 Motion, he raises six grounds for relief, all
based on alleged ineffective assistance of his counsel,
William Pfeffer. Before addressing Avalos's assertions,
and providing additional facts related to each assertion, the
Court will summarize the record regarding legal
representation provided to Avalos in these proceedings.
April 30, 2014, Magistrate Judge Thomas D. Thalken appointed
the Federal Public Defender to represent Avalos. On May 5,
2014, Avalos's retained counsel, Chinedu Igbokwe, entered
his appearance, and the Federal Public Defender withdrew his
appearance. On May 9, 2014, Igbokwe moved to withdraw his
appearance, and that motion was granted on May 12, 2014, when
Pfeffer entered his appearance as retained
counsel. A jury trial began on September 30, 2014,
and ended in declaration of a mistrial on October 2, 2014. On
October 3, 2014, Pfeffer sought appointment under the
Criminal Justice Act, and received that appointment. A second
jury trial began on November 4, 2014, and ended on November
6, 2014, with a finding of guilt. Pfeffer filed a Notice of
Appeal on March 24, 2015, then moved to withdraw on March 27,
2014, noting a break down in his relationship with Avalos. On
April 6, 2015, the Court of Appeals appointed Pfeffer to
represent Avalos on appeal pursuant to the Criminal Justice
order to establish ineffective assistance of counsel, a
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.
alleges Pfeffer told him he would not receive a sentence
longer than fourteen years if he proceeded to trial and was
found guilty. Avalos contends that he would have accepted an
offer from the government for a sentence of ten years in
exchange for a guilty plea, had he known that he faced a
potential sentence longer than fourteen years if found guilty
following a jury trial.
also contends that Pfeffer did not advise him about the
concept of constructive possession, and therefore Avalos
misunderstood the elements of the offense and the
government's burden of proof. He contends that he would
have entered a guilty plea if he had understood how the jury
would be instructed concerning constructive possession.
record shows that Avalos was advised of the potential
penalties he faced at the time of his arraignment on April
30, 2014. See ECF No. 73, Page ID 238-38. Nonetheless, the
Court will require the government to respond to the claims in