United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
Hernandez Badillo has filed a motion pursuant to 28 U.S.C.
§ 2255 claiming that his counsel rendered ineffective
assistance of counsel. The motion will be denied because it
plainly appears from the motion and the files and records
that the defendant is not entitled to relief.
Badillo's meandering and conclusory motion asserts two
claims that I summarize and condense for clarity. First, he
claims his counsel did not advise him about exercising his
right to appeal. Second, he claims his attorney promised him
that he would receive a safety-valve reduction at sentencing.
claims are frivolous. The record establishes that the
defendant made a knowing, intelligent and voluntary plea and
entered into a knowing, intelligent and voluntary plea
agreement with the government that required the defendant to
waive his right to a direct appeal. The record also
establishes that the defendant was explicitly advised by me
prior to the acceptance of the plea that there was no
assurance that he was eligible for or would receive the
safety-valve adjustment. The record further establishes that
no promises were made to the defendant except for those set
forth in the plea agreement. There were no promises made in
the plea agreement regarding the safety-valve.
record I refer to consists of (1) the petition to enter a
plea of guilty (filing no. 48) and the plea
agreement (filing no. 49); (2) my Rule 11 inquiry on
April 25, 2016 regarding the plea and plea agreement (filing
no. 76); and (3) Magistrate Judge Zwart's
inquiry of April 28, 2016 (filing no. 77)
where the defendant told Judge Zwart that he was thinking
clearly when he appeared before me to enter the plea and
accept the plea agreement and, further, where he explained to
Judge Zwart that he had decided to enter a plea and accept
the plea agreement soon after consulting with a separate and
second lawyer (not counsel of record who defendant attacks
I find and conclude that the defendant cannot make out either
prong of the Strickland test. Strickland v.
Washington, 466 U.S. 668, 694 (1984) (announcing
principles for evaluation of claims of ineffective assistance
of counsel under the Sixth Amendment). In order to prevail on
a claim that defense counsel rendered ineffective assistance
of counsel under Strickland such that relief is
warranted, the claimant must establish two things. He or she
must establish (1) that “‘counsel's
representation fell below an objective standard of
reasonableness, '” and (2) that “‘there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'” Nguyen v. United
States, 114 F.3d 699, 703-04 (8th Cir. 1997) (quoting
Strickland, 466 U.S. at 688-89).
the first prong, a judge's “scrutiny of
counsel's performance must be highly deferential, ”
and the judge must “indulge a strong presumption that
counsel's conduct falls within the range of reasonable
professional assistance.” Reed v. United
States, 106 F.3d 231, 236 (8th Cir. 1997). In other
words, a judge should make “every effort” to
“eliminate the distorting effects of hindsight”
by examining the lawyer's performance from
“counsel's perspective at the time” of the
alleged error. Strickland, 466 U.S. at 689.
the second prong, a “reasonable probability” is
less than “more likely than not.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (citing Nix v.
Whiteside, 475 U.S. 157, 175 (1986) (“[A]
defendant need not establish that the attorney's
deficient performance more likely than not altered the
outcome in order to establish prejudice under
Strickland “(emphasis added))). But, the
showing must be compelling enough to “undermine
confidence in the outcome.” Strickland, 466 U.S. at
a defendant cannot appeal an adverse ruling on a § 2255
motion unless he or she is granted a certificate of
appealability. 28 U.S.C. § 2253(c)(1); 28 U.S.C. §
2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
certificates (1) where the district court reaches the merits
or (2) where the district court rules on procedural grounds
are set for in Slack v. McDaniel, 529 U.S. 473,
484-485 (2000). I have applied the appropriate standard and
determined that the defendant is not entitled to a
certificate of appealability.
ORDERED that the § 2255 motion (filing no. 74) is denied
with prejudice. No certificate of appealability is or will be
issued. A separate judgment will be entered.
Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District
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, ...