United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 133)
filed by the defendant, Jose Luis Meza-Lopez. The motion was
timely filed less than 1 year after the defendant's
conviction became final. See § 2255(f). The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
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.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant was charged with conspiracy to distribute 500 grams
or more of methamphetamine and conspiracy to launder money.
Filing 1. Generally, the scheme involved the defendant
loading methamphetamine into cars at his home in Phoenix,
Arizona, so that couriers could deliver them to Ramon Garcia
in Lincoln, Nebraska. See filing 84 at 20. The cars
were then returned by Garcia to the defendant, containing
cash. Seefiling 84 at 20.
defendant pled guilty to both counts, without a plea
agreement. Filing 77. The presentence report (PSR) found that
the defendant was responsible for 17.45 kg of
methamphetamine, based on findings made in another case
involving the same conspiracy. Filing 110 at 6; see
United States v. Garcia, 774 F.3d 472, 474 (8th Cir.
2014). Based a total offense level of 37 and a criminal
history category I, the PSR found a guideline imprisonment
range of 210 to 262 months. Filing 110 at 11. On January 9,
2015, the Court adopted the presentence report, filing 115 at
1, and sentenced the defendant to 210 months imprisonment on
each count, with the sentences to run concurrently, filing
114 at 2. The defendant appealed to the U.S. Court of Appeals
for the Eighth Circuit, which affirmed his convictions and
sentence. See United States v. Meza-Lopez,
808 F.3d 743 (8th Cir. 2015).
defendant's § 2255 motion (filing 133) raises three
claims: (1) ineffective assistance of counsel, (2)
eligibility for a minor role reduction pursuant to U.S.S.G.
Amendment 794, and (3) violation of "Fed. R. Crim. P.
32(c)(3)(D)" (recodified as Fed. R. Crim. P.
Ineffective Assistance of Counsel
establish a claim of ineffective assistance of counsel, the
defendant must show that his attorney's performance was
deficient and that this prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Deficient performance can be shown by demonstrating that
counsel's performance fell below an objective standard of
reasonableness. Id. at 688. However, the Court's
scrutiny of counsel's performance is highly deferential,
because the Court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance. Id. at 689.
satisfy the prejudice prong of Strickland, the
defendant must show that counsel's error actually had an
adverse effect on the defense. Gregg v. United
States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant
must do more than show that the errors had some conceivable
effect on the outcome of the proceeding. Id. Rather,
the defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. Id. A "reasonable probability"
is less than "more likely than not, " but it is
more than a possibility; it must be sufficient to undermine
confidence in the outcome of the case. Paul v. United
States, 534 F.3d 832, 837 (8th Cir. 2008).
Drug Quantity Calculation
defendant's primary argument for ineffective assistance
of counsel is based on counsel's failure to object to the
drug quantity calculation in the PSR. He complains both of
counsel's failure "to object [to] the reliability of
the information used to calculate the drug quantity
attributed to" him, and "to challenge the amount of
methamphetamine attributed to" him. Filing 136 at 3, 5.
He also contends that counsel was ineffective in
"failing to challenge laboratory reports, "
although his argument is really that counsel should have
challenged the sufficiency of the evidence to support a
finding that all the methamphetamine allegedly distributed by
the conspiracy would have been of the same purity as the
quantity that was actually seized and tested. Filing 136 at
6-7. And he couches the ...