United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Marco Jimenez Fernandez's
(“Fernandez”) pro se Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Filing No. 75). For the reasons
stated below, the motion is denied and no certificate of
appealability will issue.
5, 2017, Fernandez, with the assistance of an interpreter,
pled guilty pursuant to a written plea agreement to
possessing cocaine with intent to distribute, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1). He was
represented by Paul J. Forney (“Forney”). In his
plea agreement, Fernandez generally waived his rights to
appeal and collateral review, except for claims that the
charge failed to state a crime or that Fernandez received
ineffective assistance of counsel. He also reserved the right
to appeal the Court's denial of his motion to suppress
the evidence seized from his vehicle and all statements he
made following a traffic stop in Omaha, Nebraska.
sentencing, Fernandez moved (Filing No. 60) for a downward
variance based on the sentencing factors set forth in 18
U.S.C. § 3553(a). Noting he had “no criminal
history, ” he argued he “was merely driving
a vehicle that contained drugs” without knowledge of
what he was carrying-though he suspected it was illegal. At
Fernandez's sentencing hearing on August 18, 2017, the
Court denied Fernandez's motion but considered his
arguments in setting his sentence.
presentence investigation report calculated an advisory
United States Sentencing Guidelines (“U.S.S.G.”
or “Guidelines”) range of 70 to 87 months
imprisonment (level 27, category I). Fernandez was not
eligible for safety-valve relief because he did not
truthfully proffer to the government all information and
evidence he had related to his offense. 18 U.S.C. §
3553(f)(5); U.S.S.G. §§ 2D1.1(b)(17), 5C1.2(a). The
Court sentenced Fernandez to seventy months imprisonment-the
bottom of his advisory Guidelines range-and three years of
supervised release. At the close of the hearing, the Court
reminded Fernandez he had waived most of his appeal rights
but had preserved his right to appeal the denial of his
suppression motion. The Court told Fernandez that if he
wanted to appeal, he “should discuss that in more
detail with” Forney. Fernandez did not appeal his
conviction or sentence.
February 12, 2018, Fernandez timely moved pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence. As grounds for relief, Fernandez asserts his legal
counsel was “poor and ineffective” and never
helped him. According to Fernandez, Forney never visited,
pushed him to plead guilty, promised he would receive a
sentence below seventy months, misled him about his
eligibility for safety-valve relief, and never discussed his
“appeal rights in any way.” Fernandez also
asserts he did not fully understand the legal proceedings
because of his “limited knowledge of English and the
7, 2018, the Court conducted an evidentiary hearing regarding
Fernandez's § 2255 Motion. Fernandez participated by
telephone with the assistance of an interpreter. Forney was
called as a government witness and appeared in person. Both
testified in detail about Forney's representation of
Fernandez. See Tasby v. United States, 504 F.2d 332,
336 (8th Cir. 1974) (explaining that filing a § 2255
motion based on ineffective assistance of counsel implicitly
waives the attorney-client privilege on matters implicated by
the ineffective-assistance claim).
Standard of Review
§ 2255(a), a federal prisoner may seek post-conviction
relief if his “sentence was imposed in violation of the
Constitution or laws of the United States, or [if] the court
was without jurisdiction to impose such sentence, or [if] the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” Such relief
“is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have
been raised on direct appeal and, if uncorrected, would
result in a complete miscarriage of justice.”
Walking Eagle v. United States, 742 F.3d 1079,
1081-82 (8th Cir. 2014) (quoting United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
Allegations of Ineffective Assistance of Counsel
§ 2255 motion turns on his claims of “poor and
ineffective legal counsel.” The Sixth Amendment to the
U.S. Constitution guarantees a criminal defendant the right
to effective assistance of counsel. U.S. Const. amend. VI;
Strickland v. Washington, 466 U.S. 668, 698 (1984).
To prove ineffective assistance of counsel and obtain relief
under § 2255, Fernandez must show his trial
counsel's performance was both
“deficient”-that is, “that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment”-and “that the deficient performance
prejudiced the defense.” Strickland, 466 U.S.
performance is deficient when it falls “below an
objective standard of reasonableness” “under
prevailing professional norms.” Id. at 688.
The Court's review of counsel's performance is highly
deferential. Id. at 689. The Court must make
“every effort . . . to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time.”
Id. In evaluating counsel's performance, ...