United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
Rios-Sanchez (Defendant) has filed a timely § 2255
motion alleging ineffective assistance of trial counsel and
direct appeal counsel. After initial review, I deny the
motion and dismiss it with prejudice.
Defendant admitted when he entered his guilty plea in 2001
that he agreed to transport drugs from Washington to Arkansas
in exchange for $1, 500.00. The Nebraska State Patrol
officers stopped the Defendant for expired license plates.
While conducting a search, the officers discovered seven
pounds of methamphetamine in a cooler inside the vehicle and
1.3 grams of methamphetamine in Defendant's sock. He pled
guilty to possession with intent to deliver 500 grams or more
of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1) thus triggering a statutory mandatory
minimum sentence of ten years unless he was eligible for the
Defendant failed to appear at his sentencing hearing
scheduled for January 23, 2002. He evaded capture for over
fourteen years before he was finally located living in
Wyoming. Substantially varying downward due to
Defendant's poor health, I sentenced Rios-Sanchez to a
statutory minimum term of 120 months' imprisonment. I
also found that he was not eligible for the safety-valve or a
minor role adjustment.
Defendant appealed alleging that I erred in failing to
provide the Defendant with a safety-valve adjustment. The
Court of Appeals disagreed and affirmed. United States v.
Rios -Sanchez, 731 Fed.Appx. 558, 560 (8th Cir. 2018).
The Court of Appeals held that I erred in finding the
Defendant was categorically ineligible for consideration
under the safety-valve because he did not provide any
information to the government before the first sentencing
hearing in 2002, but that the error was harmless. The Court
of Appeals ruled that the Defendant's written
safety-valve statement and his testimony at the second
sentencing hearing in 2017 demonstrated that he did not
truthfully proffer all information about his involvement in
the offense and, therefore, did not satisfy his burden of
showing he was entitled to relief.
on Ineffective Assistance of Counsel
Defendant asserts that defense counsel was ineffective.
Therefore, the Strickland standard must be applied.
Strickland v. Washington, 466 U.S. 668, 688, 694
(1984) (announcing principles for evaluation of claims of
ineffective assistance of counsel under the Sixth Amendment).
In order to prevail on a claim that defense counsel rendered
ineffective assistance of counsel under Strickland,
the claimant must establish two things. He or she must
establish (1) that “‘counsel's representation
fell below an objective standard of reasonableness,
'” and (2) that “‘there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'” Nguyen v. United
States, 114 F.3d 699, 703-04 (8th Cir. 1997) (quoting
Strickland, 466 U.S. at 688, 694.)
evidentiary hearing is unnecessary if the claimant makes an
insufficient preliminary showing on either or both prongs or
the record clearly contradicts the claimant's showing on
either or both prongs. Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995) (affirming denial of §
2255 motion without a hearing in the face of an ineffective
assistance of counsel claim; stating that no evidentiary
hearing is required where “(1) the petitioner's
allegations, accepted as true, would not entitle the
petitioner 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
Defendant first argues that his counsel was ineffective
because the lawyer failed to file a motion to suppress the
fruits of the search of the vehicle inasmuch as the Defendant
did not consent to the search. Both predicates of this
argument are factually untrue.
motion to suppress was filed but the Defendant after
consulting his counsel agreed that it should be withdrawn. At
the time of his plea, the Defendant told the Magistrate Judge
that he agreed that the suppression motion should not be
pursued after discussing the matter with his counsel:
THE COURT: Mr. Potter, have you discussed with the Defendant
any possible defenses that he may have to the charge?
MR. POTTER: I have, Your Honor.
THE COURT: Mr. Rios-Sanchez, is that correct?
MR. RIOS-SANCHEZ: (By the Interpreter) Yes.
MR. POTTER: Your Honor, for the Court, I had filed a motion
to suppress, and we did withdraw that motion to suppress when