United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
the court is defendant's motion alleging claims of
ineffective assistance of counsel pursuant to 28 U.S.C.
§ 2255, Filing No. 77. 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
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.
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)).
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.
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.
ASSISTANCE OF COUNSEL
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.
First Three Grounds for Relief
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.
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 ...