Acevedo v. United States

• Decision Date: 27 January 2012
• Docket Number: Case No. 1:05-cr-17,Case No. 1:10-cv-46
• Parties: MICHAEL ACEVEDO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

MICHAEL ACEVEDO, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

Case No. 1:05-cr-17

Case No. 1:10-cv-46

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA

ENTERED: January 27, 2012

Judge Edgar

MEMORANDUM AND ORDER

Federal prisoner Michael Acevedo moves pursuant to 28 U.S.C. § 2255 for post-conviction relief. [Court Doc. No. 24]. After reviewing the record, the Court concludes that the motion will be denied and dismissed with prejudice. The record conclusively shows that the motion is without merit and Acevedo is not entitled to any relief under § 2255. There are no material issues of fact in dispute and there is no need for an evidentiary hearing.

I. Facts and Procedural History

On October 30, 2008, Acevedo, pleaded guilty to Counts Two and Three of the indictment. Count Two charged him with aiding and abetting attempted armed robbery in violation of 18 U.S.C. § 1951 and 18 U.S.C. § 2(a) and (b). He was charged in Count Three with using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i).

During his rearraignment hearing, the following undisputed summary of facts was presented to the Court by the United States Attorney to support Acevedo's guilty plea:

On November 12, 2003, officers from the Red Bank Police Department interrupted a robbery at the Blockbuster Video store in Red Bank, Tennessee. Employees were about to close the store at midnight when a clerk noticed two suspicious men inside. The two wandered around the storefor some time, then approached the counter, ostensibly to rent a movie. One said he left his ID in the car, and the other ran out of the store. The first stalled the clerk; then the second man came back into the store, grabbed the first, and said something to him in Spanish. The two men then hurried out of the store together. The police arrived moments later and saw Acevedo, who matched the description given by the clerks. Acevedo immediately began to run when he saw the police. He was apprehended nearby with several items that were consistent with a robbery. Acevedo dropped a .380 caliber handgun during the foot chase with police.

Acevedo admits that he and another individual conspired and attempted to rob the Blockbuster Video store. Acevedo admits that he took a substantial step in the robbery of the Blockbuster Video.

[Transcript of Rearraignemt Hearing, pp. 23-24]. When Acevedo was arrested, police officers searched him and found a vial of cocaine plus a pair of latex gloves. The police also found a roll of duct tape in the area where they first observed Acevedo standing near the store.

Based on these facts Acevedo admitted under oath that he was guilty on Counts Two and Three. This Court carefully examined Acevedo pursuant to Fed. R. Crim. P. 11 to make certain that he was entering a voluntary and intelligent guilty plea. The Court determined that there was valid factual basis for the guilty plea.

The presentence investigation report (PSR) provides the following factual summary of Acevedo's offense conduct:

5. On October 6, 2002, Faith Lacey, Benjamin Valdez and a third individual (whose identity is unknown) discussed robbing the Blockbuster Video store on Highway 58 in Chattanooga, Tennessee. Ms. Lacey was employed at the store at the time and was living with Mr. Valdez and Jose Perez on Woodmont Drive in Chattanooga.

6. On August 20, 2003, Mr. Perez purchased two Hi-Point .380 caliber pistols from G and N Gun and Pawn on Lee Highway in Chattanooga.

7. On November 12, 2003, Red Bank, Tennessee, Police officers were called to the Blockbuster Video store on Dayton Boulevard by store clerks who reported that two customers were acting suspiciously. As the subjects werepreparing to check out, one of them went to the parking lot, then returned and said something in Spanish to the other subject. At that point, both subjects fled the store and the employees locked the doors behind them. When officers arrived on the scene, the employees were able to describe the clothing the subjects were wearing and officers located Mr. Acevedo in the parking lot. Acevedo fled on foot and officers were able to subdue him after a lengthy chase. While he was running, Acevedo dropped something. Officers later retrieved a loaded Hi-Point .380 caliber pistol (serial number P984760—one of the pistols purchased by Mr. Perez on August 20, 2003). During a search of Mr. Acevedo, officers recovered a vial of cocaine and a pair of latex gloves. Beside a dumpster near the store, where officers first saw Acevedo standing, was a roll of duct tape. Mr. Acevedo was processed at the Hamilton County Jail and released the same day.

8. On November 16, 2003, Jose Perez reported to East Ridge Police officers that his two Hi-Point .380 caliber pistols had been stolen from his garage on Woodmont Drive. East Ridge officers found no forced entry into the garage and Mr. Perez was unable to provide names of any potential suspects. He said he had not see the guns since October 31, 2003, when he was leaving town on a truck driving route.

9. Around 12:10 on the morning of November 21, 2003, the store manager believes Michael Acevedo attempted to enter the Blockbuster Video store on Dayton Boulevard which he had previously endeavored to rob. The store was closed at the time. The store manager had locked the doors moments before, with assistance from a Red Bank Police officer. Several minutes after the manager locked the doors, an individual the manager believed to be Mr. Acevedo appeared at the doors and attempted to convince the manager to open the door. He left the area when she refused. She later realized that the individual appeared to be the same person who had attempted to rob the store on November 12, 2003, and she notified police.

(PSR, pp. 3-4).

Acevedo was represented by counsel at his guilty plea/rearraignemt hearing under Fed. R. Crim. P. 11 and during the sentencing process. Acevedo and his counsel did not raise any objections to the PSR and the summary of the factual basis for the guilty plea.

In calculating the advisory guideline range under United States Sentencing Guidelines, the probation officer determined that the attempted robbery on Count Two yielded a base offense levelof 20. Acevedo possessed a firearm during the course of the attempted robbery and ordinarily 5 more levels would have been added to the base offense level under U.S.S.G. § 2B3.1(b)(2)(C). However, because Acevedo was also convicted on Count Three of violating 18 U.S.C. § 924(c)(1)(A), the probation officer pursuant to Application Note 4 to U.S.S.G. § 2K2.4 did not apply the specific offense characteristic for possession of a firearm. Allowing a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, Acevedo's total offense level was 17 on the attempted robbery under Count Two. He had five prior convictions resulting in 6 criminal history points and a criminal history category of III. The guideline range on Count Two was 30 -37 months. The conviction on Count Three for violating 18 U.S.C. § 924(c)(1)(A) required a mandatory consecutive term of 60 months imprisonment. The total effective guideline range on Counts Two and Three combined was 90 - 97 months.

During the sentencing hearing on March 11, 2009, Acevedo stated that he had reviewed the PSR with his counsel. Acevedo and his counsel had no objections to the PSR. Acevedo waived any objections to the PSR. Because Acevedo did not object to the facts set forth in the PSR, he is deemed to have admitted those facts. United States v. McCormick, 401 F.3d 29, 33 (6th Cir. 2010); United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009); United States v. Vonner, 516 F.3d 382, 384-85 (6th Cir. 2008) (en banc); United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005).

This Court sentenced Acevedo to imprisonment for a total term of 90 months. The sentence consists of 30 months on Count Two and 60 months on Count Three, to be served consecutively. The judgment of conviction was entered on March 16, 2009. [Court Doc. No. 22]. Acevedo did not take a direct appeal to the Sixth Circuit Court of Appeals.

II. Claims in § 2255 Motion and Petitioner's Reply Brief

In his § 2255 motion, Acevedo challenges his 30 month sentence of imprisonment on Count Two for attempted armed robbery. Acevedo contends that his guideline range on Count Two was incorrectly calculated in the PSR and the Court committed plain error by adopting the PSR. It is argued that Acevedo was erroneously sentenced to a greater term of imprisonment on Count Two than if the PSR had been correct. He argues that the Court failed to allow a three-level reduction for an attempt pursuant to U.S.S.G. § 2X1.1(b)(1). Acevedo wants the PSR to be corrected and his guideline range lowered on Count Two based on U.S.S.G. § 2X1.1(b)(1). He requests to be resentenced on Count Two.

The precise nature and extent of Acevedo's motion for relief under § 2255 is muddled as a result of new claims and arguments in his reply brief. [Court Doc. No. 31]. The government argues that Acevedo's claim that the Court committed plain error by not applying U.S.S.G. § 2X1.1(b)(1) when calculating the offense level and guideline range on the attempted robbery conviction on Count Two should be dismissed on the ground that it is procedurally defaulted. [Court Doc. No. 28, pp. 4-5]. It is procedurally defaulted because Acevedo did not raise this U.S.S.G. § 2X1.1(b)(1) sentencing issue on direct appeal to the Sixth Circuit Court of Appeals. The government asserts that Acevedo has not shown cause for the procedural default and prejudice.

In his reply brief [Court Doc. No. 31], Acevedo seeks to counter the government's procedural default argument by raising new claims of ineffective assistance of counsel and actual innocence which are not pleaded in his § 2255 motion. Acevedo in his reply brief argues for the first time that he was deprived of his right to effective assistance of counsel under...