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United States v. Avalos

United States District Court, D. Nebraska

March 8, 2017

JOSE AVALOS, Defendant.


          Laurie Smith Camp Chief United States District Judge

         This 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 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.


         Following 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.

         In his § 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.

         On 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.[1] 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 Act.


         In 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.

         I. Ground One

         Avalos 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.

         Avalos 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.

         The 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 Ground One.

         II. ...

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