OPINION AND ORDER
This matter comes before the Court on petitioner Jose Luis Salazar-Flores's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1-1; Cr. Doc. #201-1)1 and his Affidavit in Support of the Section 2255 motion (Cv. Doc. #1-2; Cr. Doc. #201-2). Two weeks later, petitioner filed a Supplement in support of his Section 2255 motion with attachments. (Cv. Doc. #7.) The United States filed its Response to Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. Section 2255 (Cv. Doc. #10), and petitioner filed a Reply to the Response of the United States (Cv. Doc. #12). For the reasons set forth below, petitioner's Section 2255 motion is denied.
Petitioner was initially indicted on June 1, 2006. On September 27, 2006, a federal grand jury in Fort Myers, Florida, returned a one-count Superceding Indictment (Cr. Doc. #64) against petitioner Jose Luis Salazar-Flores (petitioner or Salazar-Flores), Jose Ascencion Perez-Soto, and Arbey Medina-Flores. All defendants were charged with possession with intent to distribute five hundred grams or more of a mixture or substance containing a detectable amount of methamphetamine on or about May 25, 2006, in violation of 21 U.S.C. Sections 841(a)(1) and 841(b)(1)(A)(viii), and 18 U.S.C. Section 2.
Petitioner attempted to plead guilty before a United States Magistrate Judge, but was unable to successfully complete the guilty plea colloquy. (Cr. Docs. #86, 129.) After a two-day jury trial, petitioner was convicted of the charge. (Cr. Doc. #113.) On March 12, 2007, petitioner was sentenced to a term of imprisonment of 188 months, followed by a term of 60 months of supervised release. (Doc. #171.)
Petitioner appealed his conviction and sentence on March 13, 2007. (Cr. Doc. #169.) On January 11, 2008, the Court of Appeals for the Eleventh Circuit affirmed. (Cr. Doc. #199); United States v. Salazar-Flores, 262 F. App'x 190 (11th Cir. 2008).
Petitioner's Motion under 28 U.S.C. Section 2255 was filed on October 5, 2009. (Cv. Doc. #1.) The motion was dated September28, 2009, and in the absence of evidence to the contrary, the Court will presume it was delivered to prison authorities to be mailed on the same date. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Therefore, the motion is deemed to have been filed on September 28, 2009. The United States does not argue that petitioner's motion under 28 U.S.C. Section 2255 was untimely, and therefore has forfeited this defense.
The Eleventh Circuit Court of Appeals summarized the pertinent facts of the case as follows:
Salazar-Flores was arrested after he delivered methamphetamine to an undercover Drug Enforcement Agency ("DEA") agent. Salazar-Flores, accompanied by Jose Ascencion-Perez, drove his pickup to a prearranged meeting place at a Cracker Barrel restaurant. Salazar-Flores indicated to the DEA agent that he was the person delivering the methamphetamine. Salazar-Flores walked the agent to another car driven by Arbey Medina-Flores, Salazar-Flores's cousin. Salazar-Flores opened a rear passenger door and motioned to the DEA agent that the drugs were in the back. When the DEA agent did not see any drugs, Medina-Flores stated that the drugs were behind the cushioning of a child car seat and lifted the cushioning. The DEA agent saw several cylindrical objects wrapped in cellophane.
Using a razor blade produced by Salazar-Flores, the DEA agent opened one of the packages and found a brown, powdery substance. After Salazar-Flores, Medina-Flores and Ascencion-Perez were arrested, lab reports confirmed that the substance consisted of 2.144 kilograms of a methamphetamine mixture.
At his plea hearing, Salazar-Flores indicated that he wished to enter a guilty plea, but also maintained essentially that he was a drug mule and that, although he knew he was delivering drugs hidden in the child car seat, he did not know that the drug was methamphetamine.
Defense counsel expressed concern that there might not be a factual basis for a guilty plea and that his client might not want to persist in his plea. After a recess, Salazar-Flores entered a not guilty plea.
Salazar-Flores, Medina-Flores and Ascencion-Perez were tried together. Salazar-Flores's defense was that he was innocent because, although he suspected there might be an illegal substance in the child car seat, he did not know for sure and he did not know that the substance was methamphetamine. Salazar-Flores called co-defendant Ascencion-Perez as a defense witness. Ascencion-Perez testified that he and Salazar-Flores had gone to the Cracker Barrel restaurant for work and were unaware of the drugs in the child car seat.
In addition, Salazar-Flores testified on behalf of his cousin Medina-Flores. Specifically, Salazar-Flores testified that when he met the undercover agent, he thought he was delivering the child car seat. Salazar-Flores also testified that he did not know there were drugs in the car seat and that he thought the person to whom he was delivering the car seat would give him work in construction or painting. The jury convicted Salazar-Flores and his co-defendants. . . .
At sentencing, Salazar-Flores argued that his statements during his plea hearing showed that he had accepted responsibility and that he was an uneducated man who had been manipulated and influenced by others. The district court overruled Salazar-Flores's objection, finding that Salazar-Flores's later trial testimony denying liability was inconsistent with his statements at the plea hearing and indicated that Salazar-Flores did not accept responsibility. . . .
The district court stated that it considered all of Salazar-Flores's arguments and the § 3553(a) factors, but found that the only mitigating factor was Salazar-Flores's lack of a prior criminal history. Additionally, the district court noted that Salazar-Flores was in the country illegally, was involved in the distribution of a substantial amount of methamphetamine, even if he was just a "mule," and that he had lied about his involvement. The district court imposed a 188-month sentence.
Salazar-Flores, 262 F. App'x 190 at 191-92. Additional facts will be set forth below as needed to address specific issues.
Because petitioner is proceeding pro se, his pleadings are construed liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Petitioner raises twelve claims of ineffective assistance of counsel, which read as follows:
1. Petitioner Flores's Sixth Amendment Constitutional Right in obtaining effective assistance of counsel was denied and by the deniel of counsel's effective assistant of counsel Mr. Flores was exposed to lenghty sentence where he was enhanced 2 level for obstruction of justice where counsel through ineffectiveness procured client Mr. Flores to commit perjury where he obtained 2 level increase after being convicted from jury trial.
2. Mr. Flores 2 level stems from information as testimony given at change of plea hearing where Mr. Flores seek to plead guilty but counsel abrogated this process where Mr. Flores was going to plead guilty and advised client Mr. Flores they would be going to trial and he would win by jury trial.
3. Counsel of the record O'Brien advised client Mr. Flores within the only two visitation he must not worry he would get him off.
4. Mr. Flores from the inception and first meeting with counsel Atttorney O'Brien instructed him he wanted to plead guilty because he was guilty he was arrested with drugs and wanted to seek getting the lowest sentence.
5. At not time counsel Mr. O'Brien never advised client Mr. Flores, that he could plead guilty and benefit from U.S.S.G. Safety Value provisions and as being first time offender he was eligible for safety value.
6. Attorney O'Brien never informed or advised client Mr. Flores he could benefit when pleading guilty to acceptance of responsibility and obtain 2-3 level decrease in his base offense level where this wouldfurther lower his base offense score where the court would impose lower sentence.
7. Mr. Flores never comprehended what happen at his change of plea hearing' where his intention was to plea guilty and the end result cause his sentence to be enhanced for Obstruction of Justice.
8. At trial proceedings Attorney O'Brien advised client Mr. Flores to take the witness stand and testify in his own behalf further and exposed Mr. Flores to 2 level enhancement for obstruction of justice.
9. Mr. O'Brien reasured Mr. Flores after him testifying every thing was going to be okay and not to worry.
10. Mr. Flores did not understand the difference in going to trial and taking a plea agreement.
11. Mr. Flores attorney Mr. O'Brien only came to see him twice at the county jail to discuss his case.
12. After trial proceedings when the PSR was completed and presented Mr. O'Brien never objected to the PSR or never filed any Memorandum of Objection in opposition the enhancement, minor role, or any other factor that may have place the court on notice under Rule 32(f) F. R. Crim. P. moreover attorney Mr. O'Brien never attended Presentence Interview between Probation Officer and client Mr. Flores as Rule 32(c)(2) mandates.
(Cv. Doc. #1; Cr. Doc. #201, pp. 2-3.)
A district court shall hold an evidentiary hearing on claims in a habeas petition "[u]nless 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(b). "[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim." Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.2002)(internal...
