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United States v. Rodriguez

United States District Court, D. Kansas

April 25, 2019




         This 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.

         I. Background

         On 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 supervised release.

         Defendant 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.[1]

         II. Legal Standards

         Defendant 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, 7 (2009).

         Under 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.

         A court 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 Cir. 1988)).

         III. Analysis

         Defendant 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.

         a. Safety Valve Provision

         Defendant 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.

         Under 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 ...

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