United States District Court, D. Nebraska
MEMORANDUM AND ORDER
S/LAURIE SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (§ 2255 Motion),
ECF No. 462.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
§ 2255 motion, and describes the initial review process:
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.
Javier R. Lozoya Menchaca pled guilty to Count I of the
Second Superseding Indictment, charging a violation of Title
21 U.S.C. § 846. He had the benefit of an interpreter at
all stages of the proceedings. He completed a plea agreement
on February 25, 2018, ECF No. 318, in which he acknowledged
that he had ample time to talk with his attorney; he was
satisfied with his representation; he understood his range of
imprisonment to be not less than ten years and up to life;
and no one had made any promise that caused him to plead
guilty other than the promises made in the plea agreement.
time of the plea, on May 14, 2018, the Court accepted the
written Plea Agreement, ECF No. 319, in which the Defendant
acknowledged that his plea would subject him to penalties
including a mandatory minimum of ten years' imprisonment,
and up to life in prison. Id. at Page ID 812. In the
Agreement, the Defendant also acknowledged that “[n]o
promises, agreements or conditions have been entered into
other than those set forth in this agreement, and none will
be entered into unless in writing and signed by all
parties.” Id. at Page ID #817. He waived his
rights of appeal and collateral attack, with certain
exceptions, including a claim of ineffective assistance of
counsel. Id. at Page ID #819-20.
Defendant was later determined to be eligible for the Safety
Valve, USSG § 2D1.1(b)(17), and a sentence below the
statutory mandatory minimum term. See Revised Presentence
Investigation Report, ECF No. 401 at Page ID 1172. On August
6, 2018, he was sentenced to a term of 70 months
incarceration-the low end of the Guideline range-and three
years of supervised release.
Defendant now contends his counsel was ineffective, because
he failed to advise him of his right to appeal from his
conviction and sentence, and because he led him to believe
his term of incarceration would be no more than 48 months.
establish ineffective assistance of counsel, the Defendant
must satisfy both prongs of the test articulated by the
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The performance prong
requires a showing that counsel performed outside the wide
range of reasonable professional assistance and made errors
so serious that counsel failed to function as the kind of
counsel guaranteed by the Sixth Amendment. Id. at
687-89. The prejudice prong requires a movant to demonstrate
that seriously deficient performance of counsel prejudiced
the defense. Id. at 687. “To establish
prejudice, the defendant must demonstrate a reasonable
probability that the result of the proceeding would have been
different, but for counsel's deficiency.”
United States v. Luke, 686 F.3d 600, 604 (8th Cir.
time of the Defendant's plea, he was a 27-year old high
school graduate. Defendant swore, under oath, that all the
information in his plea petition was true. He also testified
that he understood the contents of his plea agreement; that
the government would be able to prove the facts set out in
the factual basis; and that he was satisfied with the advice
given to him by his attorney. Although the Defendant now
contends he was rushed when signing the plea petition and
plea agreement and did not fully understand their contents,
the detailed questioning by the Court at the time of the plea
hearing established that he did understand the documents as
well as his rights under the Constitution to proceed to a
jury trial. If the Court were to accept the Defendant's
assertion that he expected a sentence of not more than 48
months incarceration, the entire plea process-plea petition,
plea agreement, and plea colloquy taken under oath-all would
be rendered meaningless.
Court cannot conclude that the Defendant's counsel's
performance was outside the wide range of reasonable
professional assistance or that he made any errors, let alone
those so serious that counsel failed to function as the kind
of counsel guaranteed by the Sixth Amendment. Nor can the
Court conclude that the result of the ...