United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA UNITED STATES DISTRICT JUDGE
This matter is before the court on defendant Jose Mejia’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 112). For the reasons stated below, the court denies the motion.
I. FACTUAL BACKGROUND
Defendant was charged with conspiracy to distribute more than 500 grams of methamphetamine and more than one kilogram of heroin (Count I); possession with intent to distribute more than 500 grams of methamphetamine (Count II); and possession with intent to distribute more than one kilogram of heroin (Count III). On January 15, 2013, defendant entered into a plea agreement with the government and pleaded guilty to Count I. (Doc. 74.)
A Presentence Report (PSR) was prepared and filed (Doc. 86), which set forth the follow facts: On February 27, 2012, a Kansas Highway Patrol trooper stopped a vehicle driven by Mitzi Nunez-Zuniga. A search of the car yielded large quantities of methamphetamine and heroin. Nunez-Zuniga said that she was going to be paid $2, 000 for delivering the drugs in the car, and that the transaction was arranged by a female named “Dona.” Nunez-Zuniga said she was supposed to call “Dona” once she arrived in Kansas City, Kansas, to make arrangements to meet with “Manny.” Nunez-Zuniga agreed to cooperate with law enforcement by making a controlled delivery. With law enforcement following her, Nunez-Zuniga drove to a parking lot, where law enforcement watched her meet with a man later identified as Manuel Navarette-Robles. Navarette-Robles got into the vehicle, and agents followed the car as it drove into the garage of a house in Kansas City. Navarette-Robles was arrested at the house.
Nunez-Zuniga later spoke with law enforcement and said that she had lied when she said “Dona” had arranged the trip. Nunez-Zuniga said defendant, who is the father of one of her children, actually made the arrangements. Telephone records obtained by law enforcement confirmed that defendant and Nunez-Zuniga were in contact 926 times in February 2012, including a call at the time of the controlled delivery. Nunez-Zuniga discussed two other drug delivery trips she made with defendant. On one of those trips, Nunez-Zuniga said they abandoned a car in Russell, Kansas, and on another they were stopped by the Kansas Highway Patrol. Law enforcement confirmed with the Russell Police Department that a car had been abandoned, as described by Nunez-Zuniga, and confirmed with the Highway Patrol that the car stop had occurred. Nunez-Zuniga also described making deposits of money with defendant. Law enforcement confirmed through bank records that these deposits were made.
On April 21, 2014, the court sentenced defendant to 81 months’ imprisonment, which was less than the sentence called for under the advisory Sentencing Guidelines. This was due to a motion filed by the government (Doc. 106) and a post-conviction agreement (Doc. 110), wherein the government agreed to recommend a two-level reduction.
The plea agreement contained an appeal waiver, although defendant did not waive claims with regard to ineffective assistance of counsel. (Doc. 74 ¶11.) Notwithstanding that the plea agreement contained the waiver, defendant untimely filed a notice of appeal. (Doc. 111.) On July 9, 2014, the Tenth Circuit dismissed defendant’s direct appeal based upon timeliness grounds. (Doc. 116.)
Defendant filed this motion pursuant to 28 U.S.C. § 2255,  arguing that his attorney provided ineffective assistance of counsel. Specifically, defendant claims he received ineffective assistance because his lawyer purportedly failed to advise him of his constitutional rights to proceed to trial (Ground I) and assure there was a factual basis to support defendant’s guilty plea (Ground II). Defendant also attacks his sentence, claiming that he was not provided the opportunity to allocute at sentencing (Ground III) and asserting that his attorney failed to timely file a notice of appeal (Ground IV).
II. LEGAL STANDARDS
The court applies the standard identified in Strickland v. Washington, 466 U.S. 668 (1984), when determining whether a habeas petitioner’s counsel provided ineffective assistance. See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner bears the burden of satisfying a two-pronged test in order to prevail. First, he must show that his attorney’s “performance was deficient” and “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. The court affords considerable deference to an attorney’s strategic decisions and “recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
Second, a habeas petitioner must demonstrate prejudice, which requires a showing that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. But, despite the existence of two prongs, “there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the [petitioner] makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id. at 697.
A. Defendant’s Plea Agreement