United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Alfredo
Rodriguez's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence By a Person In Federal Custody
(Doc. 78) and defendant's Petition to Compel the
Government to Provide Discovery Under Rules (A) of and the
Rules Governing § 2255 Proceedings (Doc. 86). Defendant
claims his attorney provided ineffective assistance of
counsel during plea negotiations and at trial.
December 18, 2013, defendant was indicted on a single-count
of conspiring to manufacture, possess with intent to
distribute, and to distribute five kilograms or more of
cocaine in violation of 21 U.S.C. § 846. The indictment
itself included the penalties, which for this specific charge
were “NLT 10 years NMT life imprisonment.” (Doc.
1, at 3.) At the initial appearance, the court explained the
charges and penalties to defendant through an interpreter.
(Doc. 4, at 1.) On August 27, 2014, the government filed a
superseding indictment adding a charge of witness tampering
in violation of 18 U.S.C. §§ 1512(b)(1)-(3). This
indictment also included the penalties for each charge, and
the penalties were explained to defendant during the
arraignment on September 4, 2014. (Doc. 31, at 1.)
Defendant's trial began on September 15, 2014. Defendant
testified in his defense on September 23, 2014. On September
24, 2014, the jury returned a verdict of not guilty as to
Count Two and guilty as to Count One. This court sentenced
defendant to 121 months imprisonment and five years of
filed a direct appeal in the Tenth Circuit Court of Appeals,
arguing there was insufficient evidence to support his
conviction. The Tenth Circuit affirmed defendant's
conviction on January 12, 2016. Defendant then timely filed
the present motion.
argues that his counsel provided ineffective assistance
during the pretrial phase and at trial. 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 will “indulge in
a strong presumption” that counsel's performance
was not deficient. Welch v. Workman, 639 F.3d 980,
1010 (10th Cir. 2011) (quoting Strickland, 466 U.S.
at 689). Counsel's performance is deficient if it falls
“below an objective standard of reasonableness . . .
[based on] prevailing professional norms.”
Strickland, 466 U.S. at 688. To prove ineffective
assistance of counsel, the petitioner must show “that
counsel did not exercise the skill, judgment and diligence of
a reasonably competent defense attorney, ” United
States v. Voigt, 877 F.2d 1465, 1468 (10th Cir. 1989),
and that counsel's decisions were “completely
unreasonable, not merely wrong, ” Boyd v.
Ward, 179 F.3d 904, 914 (10th Cir. 1999) (citing
Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.
1997)). The reasonableness standard is purposefully and
necessarily broad, for “[n]o particular set of detailed
rules” would encompass all possible scenarios that an
attorney might face. Bobby v. Van Hook, 558 U.S. 4,
the second prong of Strickland, 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.
must grant an evidentiary hearing on a § 2255 motion
“unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255. No. evidentiary hearing
is required “where the factual matters raised by the
defendant's § 2255 petition may be resolved on the
record before the court.” United States v.
Walters, 333 F.Supp.2d 1022, 1028 (D. Kan. 2004) (citing
United States v. Marr, 856 F.2d 1471, 1472 (10th
sets forth three allegations to support his argument that his
counsel was ineffective. First, defendant claims his counsel
was ineffective for failing to inform and discuss with him
the “safety valve” provisions of the United
States Sentencing Guidelines. Second, defendant claims his
counsel failed to inform him that he faced a mandatory
minimum of ten years in prison and that had he known about
the mandatory minimum, he would have accepted a plea deal
from the government. And finally, defendant argues his
counsel was ineffective during trial by not objecting to the
use of transcripts of phone calls during jury deliberation
and for failing to subpoena the officers and agents who
prepared the transcripts in order to ensure their accuracy.
Defendant insists that these errors, when considered
cumulatively, require that this court grant his petition.
Safety Valve Provision
first claims that his attorney was ineffective because he
failed to inform him of the safety valve provision in the
Sentencing Guidelines. He believes he was prejudiced because
he was not able to take advantage of a provision that would
have reduced his mandatory minimum sentence.
18 U.S.C. § 3553(f), a court shall impose
“safety-valve relief by sentencing a defendant under
the United States Sentencing Guidelines Manual . . .
‘without regard to any statutory minimum
sentence.'” United States v.
Herrera-Zamora, 647 Fed.Appx. 855, 857 (10th Cir. 2016).
If a defendant satisfies all of the criteria for safety valve
relief, he is entitled to a two-level ...