United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
case is before the court on defendant Antonio
Garcia-Viveros's Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, filed pursuant to 28
U.S.C. § 2255 (Doc. 102.) For the reasons set forth
below, the court denies defendant's motion.
pleaded guilty to possession with the intent to distribute
more than 50 grams of methamphetamine, in violation of 21
U.S.C. § 841(a)(1) (“Count 1”), and using a
firearm during a drug-trafficking crime, in violation of 18
U.S.C. § 924(c) (“Count 2”). Defendant's
calculated total offense level was 29, and he had criminal
history category of I. As requested by the government, the
court sentenced defendant to a total term of 73 months'
imprisonment, which well was below both the recommended
guidelines sentencing ranges and statutory minimums.
Defendant did not appeal his conviction or sentence.
filed the instant § 2255 motion, and claims the
following: (1) he is entitled to a sentence reduction under
Johnson v. United States, 135 S.Ct. 2551 (2015),
because his offense did not involve a “violent
felony;” (2) his conviction on Count 2 is illegal under
Bailey v. United States, 516 U.S. 137, 143 (1995),
because his offense involved only possession-not active
employment-of a firearm; (3) his sentence on Count 2 should
be reduced because Amendment 2K2.1(b)(2) mentions
consideration of a deduction of points if the offender did
not unlawfully discharge the firearm; and (4) ineffective
assistance of counsel.
defendant's plea agreement, defendant waived the right to
challenge his sentence in a collateral attack under §
2255 (except as limited by United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), and 18
U.S.C. § 3582(c)(2)). The government seeks to enforce
this waiver as to defendant's claims challenging his
reply, defendant claims that he does not speak or understand
the English language, which was utilized in his plea
agreement. Defendant also states that he barely understands
the terms in his plea agreement in Spanish, let alone
English, and it was not knowingly and voluntarily made.
Defendant alleges that the only advice he received regarding
the waiver, was from his attorney-who, defendant claims,
misadvised him into signing the plea agreement, renouncing
his appeal rights, and waiving any sort of ability to seek
relief. Defendant further argues that he feels taken
advantage of because of his immigrant status and lack of
understanding of the English language, and enforcement of the
waiver is prejudicial and something no American citizen would
accept. Defendant claims that he wanted to sign the plea
agreement without the waiver, but defense counsel did not
investigate this option.
plea hearing, the court asked defendant about the waiver and
further explained that defendant was agreeing to waive his
right to appeal and/or collaterally attack his conviction or
sentence, subject to the listed exceptions. Defendant
acknowledged that he had gone over this waiver with defense
counsel as well as responded affirmatively that he understood
he was waiving these rights and was satisfied with defense
counsel's representation. When the court inquired,
defendant indicated that no one had forced him into having
the waiver in his plea agreement and was requesting the court
of his own free will to approve the waiver as part of his
plea agreement. The court found that defendant knowingly and
voluntarily entered a plea of guilty and approved the plea
a knowing and voluntary waiver of 18 U.S.C. § 2255
rights is enforceable. Cockerham, 237 F.3d at
1181-83. However, a plea agreement waiver of postconviction
rights does not waive the right to bring a § 2255
petition based on ineffective assistance of counsel claims
challenging the validity of the plea or the waiver.
Id. at 1187. In determining whether a disputed issue
is within the scope of the waiver, courts look to the plain
language of the plea agreement. United States v.
Anderson, 374 F.3d 955, 957-58 (10th Cir. 2004).
plea agreement waiver contains the following language:
“[n]otwithstanding the forgoing waivers, the parties
understand that the defendant in no way waives any subsequent
claims with regards to ineffective assistance of counsel or
prosecutorial misconduct.” (Doc. 65, at 10). Two other
courts in this district have determined that this language is
broader than the Cockerham exception. See,
e.g., United States v. Delgado-Ornelas, No.
15-CR-10141-EFM, 2017 WL 411351, at *3 (D. Kan. Jan. 31,
2017); United States v. Ellis, No. 12-20093-01-KHV,
2017 WL 193158, at *4 (D. Kan. Jan. 18, 2017) (noting that
this final sentence is broader than the Cockerham
exception and that “the plain language of the plea
agreement permits all claims of ineffective assistance of
counsel . . . .”). These courts did not enforce the
waivers against the defendants' ineffective assistance of
counsel claims, even though their claims essentially
challenged their agreed upon sentences. Id. Instead,
the courts evaluated the defendants' claims under the
standard set forth in Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984).
Ineffective Assistance of Counsel
Strickland, defendant bears the burden of satisfying
a two-pronged test. First, he must show that his
attorney's “performance was deficient” and
“fell below an objective standard of
reasonableness.” Id. 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.
defendant 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. To show prejudice in the guilty plea context,
defendant must show a reasonable probability that but for
counsel's errors, he would not have pleaded guilty, but
insisted on going to trial. See Hill v. Lockhart,
474 U.S. 52, 59 (1985); United States v. Clingman,
288 F.3d 1183, 1186 (10th Cir. 2002). As part of his proof,
defendant must show that “a decision to reject the plea
bargain would have been rational under the
circumstances.” Padilla v. Ky., 559 U.S. 356,
372 (2010) (citing Roe v. Flores-Ortega, 528 U.S.
470, 480, 486 (2000)). “Further, defendant's
‘mere allegation that he would have insisted on trial
but for his trial counsel's errors, although necessary,
is ultimately insufficient to entitle him to
relief.'” Clingman, 288 F.3d at 1186
(quoting Miller v. Champion, 262 F.3d 1066, 1072
(10th Cir. 2001)). Rather, the court reviews the factual