United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
case is before the court on defendant Kyle Falkner's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc. 165).
Defendant alleges ineffective assistance of counsel. For the
reasons set forth below, the court denies defendant's
§ 2255 motion.
was convicted by a jury of conspiracy to distribute and
possession with intent to distribute more than 50 grams of
methamphetamine, a controlled substance, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and 18
U.S.C. § 2. The court imposed a 168-month sentence.
Judgment was entered on December 2, 2014. No direct appeal
was filed, and defendant filed his § 2255 motion on
November 5, 2015.
28 U.S.C. § 2255(a), a prisoner in custody has the right
to challenge a sentence imposed by the District Court if it
is in violation of the Constitution or other law of the
United States, or if the sentence imposed was in excess of
the maximum authorized by laws. If the court finds that
defendant is being held in violation of federal law, the
court “shall vacate and set the judgment aside and
shall discharge the [defendant] or resentence him or grant a
new trial or correct the sentence . . . .” 28 U.S.C.
Ineffective Assistance of Counsel
alleges that defense counsel failed to explain the charging
document and properly inform defendant of the meaning of
aiding and abetting under 18 U.S.C. § 2. Defendant
proffers that had he known he could be guilty for being a
participant, as opposed to the actual drug dealer or
distributor, he would have avoided trial and sought the best
plea deal possible.
Sixth Amendment provides defendants a right to the effective
assistance of counsel, and this right “extends to the
plea-bargaining process.” United States v.
Watson, 766 F.3d 1219, 1225 (10th Cir. 2014) (quoting
Lafler v. Cooper, 566 U.S. 156, 162 (2012)). When a
defendant claims that counsel's deficient performance
caused him to reject a plea offer and proceed to trial, he
must show “a reasonable probability that a plea offer
would have been presented to the court . . . that the court
would have accepted its terms, and that the conviction or
sentence, or both, under the offer's terms would have
been less severe than under the judgment and sentence that in
fact were imposed.” Lafler, 566 U.S. at 164.
establish prejudice under Strickland v. Washington,
466 U.S. 668, 687 (1984), defendant must begin by proving
that a plea agreement was formally offered by the government.
See United States v. Nguyen, 619 F.App'x 136,
141 (3d Cir. 2015) (petitioner's claim that he rejected
favorable plea offer based on counsel's deficient
performance necessarily fails if plea agreement was never
formally offered by the government); United States v.
Barajas, No. 10-20077-02-JWL, 2016 WL 427734, at *1 (D.
Kan. Feb. 4, 2016) (denying defendant's original claim
after evidence at hearing showed that the government did not
extend a formal plea offer).
March 10, 2017, the court issued a show cause order (Doc.
173) and inquired whether the government had extended a plea
offer in defendant's case. The government responded that
it had reviewed its case file, and determined that no formal
plea agreement was offered to defendant prior to trial. The
government referenced the parties' discussions concerning
defendant's cooperation with other investigations, but
defendant was not interested in providing any information and
no agreement was reached.
there were plea negotiations conducted between the parties,
defendant cannot show that the government offered any formal
plea agreement-let alone an agreement for a lesser sentence
than defendant received. While defendant states that he would
have avoided trial, he does not claim that he would have
cooperated with the government by providing it with his
co-defendants' supply source(s) and/or his knowledge of
other local area drug-trafficking activity. Because defendant
cannot show that defense counsel's alleged deficient
performance caused him to reject a favorable plea agreement,
defendant cannot show prejudice under Strickland.
See Barajas, 2016 WL 427734 at *1 (D. Kan. Feb. 4,
2016). Defendant is not entitled to relief.
evidentiary hearing is generally not required when “the
motion and files and records of the case conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255. Defendant has not demonstrated that a hearing is
necessary to resolve his motion.
court is mindful of defendant's pro se status and
liberally construes his motion. See United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (explaining
that “because [defendant] appears pro se, we must
construe his arguments liberally”). Even with this
generous review, however, defendant has not shown that
reasonable jurists could debate whether his 28 U.S.C. §
2255 motion should be resolved in a different manner or that
the issues presented were adequate to deserve encouragement
to proceed ...