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Guzman-Aviles v. United States

United States District Court, D. Kansas

May 30, 2018

ANGEL GUZMAN-AVILES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This matter comes before the court upon petitioner Angel Guzman-Aviles' Motion to Vacate Under 28 U.S.C. § 2255. (Doc. 80.)

         I. Background

         On May 4, 2015, the day his trial was set to begin, petitioner entered a guilty plea with no plea agreement to Count I of the indictment-possession with intent to distribute more than fifty grams of methamphetamine. He was sentenced to 235 months imprisonment to be followed by a term of 5 years supervised release. He appealed to the Tenth Circuit, arguing that the court incorrectly increased his base offense level pursuant to U.S.S.G. § 2D1.1(b)(1) because he possessed a dangerous weapon in connection with his drug offense. The Tenth Circuit affirmed on November 7, 2016.

         Petitioner filed his § 2255 petition on January 8, 2018, claiming that trial counsel, Forrest Lowry, was ineffective. The three grounds petitioner raises are: (1) counsel did not explain that petitioner would be accepting responsibility for possession of weapons not contained in the indictment and did not advise him to take a more beneficial plea agreement; (2) counsel did not question a change in the base offense level from 34 to 38 in the presentence investigation report (“PSR”); and (3) counsel did not challenge the court's decision to give petitioner a two-point reduction for acceptance of responsibility instead of three.

         II. Legal Standard

         a. Pro Se Litigants

         Where a plaintiff proceeds pro se, the court construes his or her filings liberally and holds them to less stringent standards than pleadings filed by lawyers. Barnett v. Corr. Corp of Am., 441 Fed.Appx. 600, 601 (10th Cir. 2011). Pro se plaintiffs are nevertheless required to follow the Federal and Local Rules of practice and the court does not assume the role of advocating for pro se plaintiffs. United States v. Porath, 553 Fed.Appx. 802, 803 (10th Cir. 2014).

         b. Petitions For Ineffective Assistance Of Counsel Under 28 U.S.C. § 2255

         The Tenth Circuit has explained that:

[t]o succeed on an ineffective assistance of counsel claim under § 2255, a defendant has the twofold burden of establishing that (1) defense counsel's performance was deficient, i.e., counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms, and (2) defendant was prejudiced thereby, i.e., there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Courts “considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within a wide range of reasonable professional assistance.” Id. at 1306 (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011) (emphasis in original)).

         III. Discussion

         The ...


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