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 237)
filed by the defendant, Carlos Vidal-Mix. 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, as relevant, with one count of
conspiring to distribute 500 grams or more of a
methamphetamine mixture, one count of possession 500 grams or
more of a methamphetamine mixture with intent to deliver it,
and one count of illegal reentry. Filing 99. He pled guilty
to the conspiracy and illegal reentry charges pursuant to a
plea agreement. Filing 129; filing 130; filing 131. The plea
agreement provided that the government would dismiss the
possession charge at sentencing. Filing 130 at 1. The
defendant waived his rights to appeal and collateral attack,
except for claims that the charge failed to state a crime or
that the defendant received ineffective assistance of
counsel. Filing 130 at 6-7. There were no cooperation
provisions in the agreement. Filing 130.
petition to enter a guilty plea, the defendant indicated his
understanding that the mandatory minimum sentence for the
conspiracy charge was 120 months' imprisonment. Filing
129 at 6. He was told at the change of plea hearing that he
faced a mandatory minimum sentence of 120 months'
imprisonment, and he said he understood. Filing 134 at 9. He
was told that if he decided to cooperate with the government,
the government was not required to do anything in
exchange-that is, that it was up to the government to decide
whether to ask for the defendant's sentence to be
reduced. Filing 134 at 18-19. He said he understood that, and
that the Court was not required, even then, to reduce his
sentence. Filing 134 at 19. And the Court explained the
waiver of appeal and collateral attack, which the defendant
also said he understood. Filing 134 at 10-11. Finally, the
defendant also said no one had made promises to him that were
not in the plea agreement. Filing 134 at 24.
Court accepted the defendant's plea of guilty. Filing
134. The presentence report established a criminal history
category I, finding no criminal history. Filing 187 at 13.
Based on a criminal history category I and a total offense
level 29, the presentence report found a guidelines
imprisonment range for the conspiracy charge that was below
the statutory mandatory minimum of 120 months. Filing 187 at
16. The defendant objected to the probation office,
contending that the defendant was safety-valve eligible.
Filing 187 at 19. The probation office, however, indicated
that according to the government, the defendant had not met
the proffer requirement. Filing 187 at 19. The defendant
objected to the presentence report, asserting his
safety-valve eligibility. Filing 165. The government opposed
the objection, arguing that the defendant had been
"evasive and deliberately untruthful" during the
safety-valve interview. Filing 180 at 2.
was adduced at sentencing regarding the defendant's
safety-valve eligibility. Seefiling 183; filing 184.
The Court found that the defendant had not "truthfully
provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were
part of the same course of conduct or of a common scheme or
plan, " and therefore that the defendant was not
safety-valve eligible. See 18 U.S.C. § 3553(f).
The Court sentenced the defendant to 120 months'
imprisonment on the conspiracy count, and 18 months'
imprisonment on the illegal reentry count, sentences to be
served concurrently. Filing 189 at 2. The defendant was also
provided with a notice of his right to appeal, which he
signed. Filing 185. He did not appeal.
defendant claims that he received ineffective assistance of
counsel. Filing 237 at 4. To 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. In the context of a challenge to a
guilty plea, the deficient performance and prejudice are
demonstrated if the defendant can prove that (1) his
counsel's representation fell below an objective standard
of reasonableness, and (2) there is a reasonable probability
that, but for counsel's alleged errors, he would not have
pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58-60 (1985);
Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103
(8th Cir. 2011).
defendant lists a number of ways in which he alleges that his
counsel was ineffective, but it is notable what he does
not allege: that but for the alleged errors, he
would not have pleaded guilty. And the ways in which he
claims he was uninformed are contradicted by the record.
begin with, the defendant claims that he did not know that by
signing the plea agreement he was giving up his right to
appeal and collateral attack. Filing 237 at 4. But as set
forth above, the Court expressly advised him of that, and he
said he understood. A defendant's representations during
plea-taking, such as those concerning the voluntariness of
the plea, carry a strong presumption of verity, and pose a
formidable barrier in any subsequent collateral proceedings.
Nguyen v. United States, 114 F.3d 699, 703 (8th Cir.
1997). Moreover, the defendant was again advised of his right
to appeal at sentencing, but did not-and there is nothing to
indicate that his decision not to appeal was somehow the
result of his plea agreement.
defendant also claims that his criminal history was
inaccurate because does not "have any record but this
offense prevented [him] from having the safety valve."
Filing 237 at 5. That's simply incorrect. U.S.S.G. §
5C1.2(a) and § ...