United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Petitioner Mario Alvarez ("Petitioner") brings this Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. Because review of Petitioner's motion and the accompanying court record conclusively show that he is not entitled to relief, this Court denies the motion without an evidentiary hearing.
I. Factual and Procedural Background
On May 18, 2011, Petitioner, along with two co-defendants, was charged by the grand jury with one count of knowingly and intentionally possessing with the intent to distribute in excess of fifty grams of a mixture or substance containing a detectable amount of methamphetamine and one count of knowingly and intentionally combining, conspiring, confederating, and agreeing together and with each other to distribute in excess of fifty grams of a mixture of substance containing a detectable amount of methamphetamine. On September 14, 2011, the grand jury returned a three-count superseding indictment which, in addition to the original charges, charged Petitioner with being an alien illegally and unlawfully in the United States with possession of a firearm. A second three-count superseding indictment was returned on October 13, 2011, amending the first two counts to include more than four hundred (400) grams of methamphetamine. Petitioner initially entered a plea of not guilty.
On the morning of trial, and after a jury had been selected, Petitioner chose to change his plea to guilty as to count one of the second superseding indictment. In exchange, the Government dismissed counts two and three. A presentence investigation report determined that Petitioner's criminal history was category I, as Petitioner had no prior adult criminal convictions. Given the amount of methamphetamine involved in Petitioner's crimes, ultimately found to be 414.2 grams, Petitioner's base offense level was 34. He received a two-point increase due to his possession of a firearm, and a two-point reduction given for Petitioner's satisfaction of the criteria set forth in the United States Sentencing Guidelines § 5C1.2(a)(1)-(5), otherwise known as the "safety valve" provision. Petitioner received an additional two-point reduction for his acceptance of responsibility, but not the third point for early plea, since his plea was entered after jury selection had commenced. Based on an offense level 32 and criminal history category I, Petitioner's sentencing guideline range was 121 to 151 months. The offense to which Petitioner pleaded carried a mandatory ten year (120 month) minimum sentence, although due to his safety value eligibility the Court had the authority to impose a lesser sentence. On July 10, 2012, exercising the safety value option, this Court sentenced Petitioner to a reduced sentence of ninety (90) months.
On September 16, 2013, Petitioner filed a Motion for Permission to Appeal after Counsel's Failure or Refusal to Appeal, pursuant to FED. R. CIV. P. 5(a)(3). On that same date, Petitioner filed a Motion to Vacate, Set Aside, or Correct a sentence pursuant to 28 U.S.C. § 2255 (Doc. 223). This Court denied Petitioner's Motion for Permission to Appeal on September 17, 2013, noting that the request was out of time. In his § 2255 motion, Petitioner claims ineffective assistance of counsel based on the following alleged errors: (1) failure to file a motion to suppress, (2) failure to file an appeal, (3) failure to appeal an unreasonable sentence, and (4) failure to file objections to the presentence report. Based on a review of the record, this Court finds Petitioner's assignments of error to be without merit.
II. Legal Standard
Under § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,
[t]he judge who receives the motion must properly 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... 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.
The court must hold an evidentiary hearing on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence. An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.
A district court may grant relief under § 2255 if it determines "that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." "Review under § 2255 is not an alternative to appellate review for claims that could have been presented on direct appeal but were not." The petitioner may overcome this procedural bar by showing either of "two well recognized exceptions." "First, the movant must show good cause for not raising the issue earlier and actual prejudice to the movant's defense if the issue is not considered." Cause may "be established by showing ...