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. 79. 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 17, 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.
about March 19, 2015, Defendant, Issreal Sanchez-Espinoza,
a/k/a Luis Guillermo Sanchez Fraijo
(“Sanchez-Espinoza”), was arrested pursuant to a
criminal complaint charging him with conspiracy to distribute
and possession with intent to distribute 500 grams or more of
a mixture or substance containing methamphetamine, in
violation of Title 21, United States Code, Section 846. A
federal grand jury returned an indictment charging
Sanchez-Espinoza with conspiracy to distribute and possession
with intent to distribute 500 grams or more of a mixture or
substance containing methamphetamine, in violation of Title
21, United States Code, Section 846. (Filing No.
33). Defendant pled guilty to Count 1, Filing No. 66,
and there was no plea agreement. In his petition to enter a
guilty plea, defendant acknowledged that he faced a mandatory
minimum of 10 years and up to life imprisonment. Filing
No. 68, at 6. The Presentence Investigation Report
indicated that the defendant was eligible for the safety
valve. The advisory guideline range was 70-87 months, and
this court sentenced defendant to 70 months. Filing No.
76. Defendant did not appeal. Defendant filed his §
2255 motion, and on August 16, 2016, this court conducted a
hearing on the issue of his appeal rights. Retained counsel,
Mr. Chinedu Igbokwe represented defendant at all relevant
motion, he asserts four grounds for relief: Ground One:
counsel failed to keep him apprised of his case, he was not
advised that by “signing the plea” that he
“was giving up [his] appeal rights and most rights to
collateral attack;” and that counsel had advised him he
would get a lower sentence. (Filing No. 79, p. 5);
Ground Two: he received “poor or ineffective legal
counsel” when his criminal background was unfairly
enhanced which prevented him from receiving safety valve
relief. (Id. at CM/ECF p. 6); Ground Three: he
received ineffective assistance when defense counsel failed
to advise the District Court of his “personal
excruciating circumstances.” Sanchez-Espinoza states he
is responsible for supporting his family who are also in the
United States. Sanchez-Espinoza also asserts his counsel was
ineffective for failing to get the “5K3.1 early
disposition program EDP.”; Ground Four: that due to his
lack of knowledge of the laws and a language barrier, along
with receiving ineffective assistance, he unknowingly
forfeited his appeal rights by signing the plea with a waiver
of those benefits. (Filing No. 79, CM/ECF p. 9). He
also argues his attorney had promised to get him a sentence
lower than 70 months. (Id.).
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 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 and thereafter pled guilty.
court agrees with the government that defendant's waiver
argument fails. There was no plea agreement in this case.
Thus, counsel did not advise the defendant to waive certain
of rights as part of a plea agreement. This claim is without
Next, as indicated by the court, defendant received a safety
valve determination. This negates any claim of ineffective
assistance because of an argued enhancement of his criminal
history. Defendant had no criminal history. He received the
safety valve. This argument has no merit. Defendant also
claims his counsel said he would receive a lower sentence.
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 ...