United States District Court, D. Nebraska
MEMORANDUM AND ORDER
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. 63.
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.
Francisco Leyva Villapudua pled guilty to Count I of the
Information, charging a violation of Title 21 U.S.C. §
841(a)(1) and § 841(b)(1). He had the benefit of an
interpreter at all stages of the proceedings. He completed a
plea petition, ECF No. 52, and plea agreement, ECF No. 53, 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 five
years and up to forty years; and no one had made any promises
that caused him to plead guilty other than the promises in
the plea agreement.
time of the plea, on February 4, 2019, the Defendant again
acknowledged that he understood the statutory penalty range;
that he understood the Court could sentence above or below
the guideline range; and that no promises had been made to
induce him to enter his plea of guilty other than those
contained in the written plea agreement. In his plea
agreement, he waived his rights of appeal and collateral
attack, with certain exceptions, including a claim of
ineffective assistance of counsel. ECF No. 53, Page ID 86. He
also acknowledged the waiver of the right of appeal at the
time of his plea.
Defendant was sentenced on April 8, 2019, to a term of 70
months incarceration and five years of supervised release. He
received a three-level role reduction; the benefit of a cap
on his base offense level pursuant to U.S. Sentencing
Guideline (U.S.S.G.) § 2D1.1(a)(5); and was sentenced at
the lowest end of the applicable guideline range.
Defendant now contends his counsel was ineffective, because
she led him to believe his term of incarceration would be
less than 70 months; she led him to believe he would receive
a two-level reduction in his base offense level pursuant to
the safety valve; she led him to believe he would receive a
departure for substantial assistance pursuant to U.S.S.G.
§ 5K1.1; and she failed to file an appeal on his
Court ordered the Government to respond to the
Defendant's allegations, and the Government submitted its
Answer, ECF No. 67, and Index of Evidence, ECF No. 68, on
October 11, 2019. The Index of Evidence includes an affidavit
from the Defendant's counsel, Deborah Cunningham, ECF No.
68-1, in which she states under oath that she never led the
Defendant to believe his term of incarceration would be less
than 70 months, and in fact she advised him that his sentence
would likely be in the 87-108 month range following a plea;
that he chose not to complete a proffer interview or
cooperate with the Government after she advised him of the
prerequisites for safety valve eligibility and/or a departure
for substantial assistance; and that after sentencing the
Defendant told her he did not wish to appeal.
Court gave the Defendant until November 1, 2019, to submit a
reply to the Government's Answer and Index of Evidence,
and, if he disputed any factual assertions in the affidavit
and requested an evidentiary hearing, to specify which facts
remained in dispute. The Defendant has submitted no reply to
the Answer and no request for any evidentiary hearing.
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.
§ 2255 petitioner is “entitled to an evidentiary
hearing ‘[u]nless the motion and the files and records
of the case conclusively show that the [petitioner] is
entitled to no relief.'” Dat v. United
States, 920 F.3d 1192, 1193-94 (8th Cir. 2019) (quoting
28 U.S.C. § 2255(b)). “A petitioner's
allegations must be accepted as true and a hearing should be
held unless they are contradicted by the record, inherently
incredible, merely conclusions, or ...