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United States v. Vasquez-Martinez

United States District Court, D. Nebraska

August 18, 2017




         Before the court is defendant's motion alleging claims of ineffective assistance of counsel pursuant to 28 U.S.C. § 2255, Filing No. 77.[1] One of the claims raised by the defendant is whether he was advised of his right to appeal and whether he asked counsel to file a notice of appeal. In accordance with United States v. Sellner, 773 F.3d 927, 929-30 (8th Cir. 2014), the court conducted a hearing on only the appeal issue on August 16, 2017. The government responded to the § 2255 motion, contending that counsel was not ineffective in this case. Filing Nos. 81 and 82. The court will now address all issues raised in this § 2255 motion.


         The government charged the defendant in Count 1 with possession with intent to distribute methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1) and (b)(1), and in Count II with illegal re-entry in violation of 8 U.S.C. § 1326(a). Filing No. 2. Defendant entered into a plea agreement, Filing Nos. 63 and 64, and pled guilty to both counts on March 25, 2016. Filing No. 61. In his petition, defendant acknowledged he faced a mandatory minimum sentenced of 10 years and up to life imprisonment on Count I. The court sentenced defendant to a term of 70 months on Count I and 24 months on Count II, to be served concurrently. Defendant filed no direct appeal.


         Under 28 U.S.C. § 2255, a federal prisoner has “an avenue for relief if his ‘sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C.A. § 2255(a)). Ineffective assistance of counsel issues are appropriately raised in collateral proceedings. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). “The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). Under the Fifth and Sixth Amendments, a criminal defendant is entitled to assistance of counsel at trial and at his first appeal of right. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Evitts v. Lucey, 469 U.S. 387, 392-93 (1985) (the fundamental right to effective assistance of counsel extends to a criminal defendant's first appeal of right). The right to counsel includes the right to reasonably effective counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to make out a claim of ineffective assistance, a petitioner must satisfy the familiar Strickland standard, “which requires a showing ‘that his lawyer's performance fell below the minimum standards of professional competence (deficient performance) and that there is a reasonable probability that the result of the proceedings would have been different if his lawyer had performed competently (prejudice).'” King v. United States, 595 F.3d at 852 (quoting Alaniz v. United States, 351 F.3d 365, 367-68 (8th Cir. 2003)).

         Deficient performance “is that which falls below the ‘range of competence demanded of attorneys in criminal cases.'” Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010) (quoting Strickland, 466 U.S. at 687). “The standard is an objective one, viewed in light of professional norms prevailing when the representation took place.” Id.; Bobby v. Van Hook, 130 S.Ct. 13, 16 (2009) (per curiam). We must consider “whether counsel's assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. The reasonableness of counsel's challenged conduct must be judged on the facts of the particular case, viewed as of the time of counsel's conduct. King, 595 F.3d at 853.

         To establish prejudice under Strickland, a petitioner must “demonstrate that there is a reasonable probability that, but for counsel's claimed unprofessional errors, the result of the proceeding would have been different.” Christenson v. Ault, 598 F.3d 990, 996 (2010). In the sentencing context, prejudice can be found with a showing that, had an argument been presented, a defendant likely would have received a much shorter sentence. King, 595 F.3d at 852-53. “An error increasing a defendant's sentence by as little as six months can be prejudicial within the meaning of Strickland.” Alaniz, 351 F.3d at 368; see also United States v. Spigner, 416 F.3d 708, 711 (8th Cir. 2005); King, 595 F.3d at 853-54.


         A defendant must knowingly and voluntarily enter into the plea agreement for it to be valid. United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003). To ensure that a defendant knowingly and voluntarily enters into the plea agreement, the district court should “properly question [the] defendant about his or her decision to enter that agreement.” Andis, 333 F.3d at 890-91. The record shows the court questioned defendant extensively about his plea agreement to ensure that he understood what rights he was giving up. Defendant, during his plea hearing, also indicated he talked with his attorney, was satisfied with his attorney, and agreed he should plead guilty. Defendant indicated that he understood his plea agreement and thereafter pled guilty.

         a. First Three Grounds for Relief

         Defendant asserts three grounds for relief: Grounds One, Two and Three are titled as “Poor and ineffective legal counsel”. Defendant alleges language barriers, failure to get him into the early disposition program, and failure to get him a sentence lower than 70 months as support for his claim of ineffective assistance of counsel.

         The court finds defendant knowingly entered into the plea agreement for both counts. The record supports the defendant voluntarily and knowingly signed the Plea Agreement and the Petition to Enter a Plea of Guilty. Further, he had the assistance of a Spanish interpreter during the entire process. Further, defendant received the safety valve, and thus the statutory mandatory minimum no longer applied. His guideline range was a sentence of 70 - 87 months. The court gave him 70 months, which is clearly at the low end of the advisory guidelines and well below what would have been the mandatory minimum of 10 years. Even if counsel told defendant he might have received a lower than 70 month sentence, under these circumstances that does not show ineffective assistance. The Eighth Circuit has stated:

Inaccurate advice of counsel about the sentencing guidelines or likely punishment does not render involuntary a defendant's decision to plead guilty, so long as the defendant is informed of the maximum possible sentence permitted by statute ...

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