Trevino v. United States
| Decision Date | 03 November 2015 |
| Docket Number | Case No: 2:14-cv-30-FtM-36MRM |
| Court | U.S. District Court — Middle District of Florida |
| Parties | ROBERT TREVINO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This cause is before the Court pursuant to Petitioner Robert Trevino's ("Petitioner's") 28 U.S.C. § 2255 motion to vacate, set aside, or correct a sentence (Doc. 1, filed January 21, 2014). Petitioner also filed a memorandum and numerous exhibits in support of his petition (Doc. 2). In response to this Court's order to show cause (Doc. 9), the Government filed a response (Doc. 10). Petitioner filed a reply (Doc. 14).
Petitioner asserts that: (1) trial counsel's ineffective assistance rendered his guilty plea involuntary; (2) trial counsel was ineffective for failing to submit written objections to the presentence report at his sentencing hearing; and (3) the trial court erred by relying on incorrect information to support a four level enhancement to his guidelines sentencing range (Doc. 2 at 7-25). Upon review of the pleadings and record, the Court concludes that Petitioner's § 2255 motion must be denied. Because each of the claims raised in the petition was waived by the plea agreement or is affirmatively contradicted in the record, an evidentiary hearing is not required. See Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) ( ).
On May 25, 2011, Petitioner was indicted for conspiracy to possess with intent to distribute and to distribute, fifty or more grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) and with three substantive distribution counts in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) and 18 U.S.C. § 2 (Cr. Doc. 15). Pursuant to a written plea agreement, Petitioner pleaded guilty to the conspiracy count, and the other charges against him were dismissed (Cr. Doc. 64; Cr. Doc. 67; Doc. 10-1).1
At his sentencing hearing (Cr. Doc. 84), Petitioner made no objections to the factual allegations in his presentence investigation report ("PSR"). Id. at 3. The Court adopted the undisputed factual statements and guideline applications as contained in the PSR. Id. at 10. It was determined that Petitioner scored a total offense level of 31 and a criminal history category of IV under the sentencing guidelines. Id. at 8. He was sentenced to 151 months in prison which was the bottom of the guidelines range of 151-188 months. Id. at 10.
Petitioner filed a direct appeal challenging the district court's leadership-role enhancement and raising claims of ineffective assistance of counsel (Cr. Doc. 76; Cr. Doc. 90). On December 7, 2012, the Eleventh Circuit dismissed the appeal because the appeal waiver in his plea agreement barred his challenge to the district court's leadership-role sentence enhancement and because any claim of ineffective assistance of counsel must be raised in a 28 U.S.C. § 2255 proceeding (Cr. Doc. 90); United States v. Trevino, 500 F. App'x 872 (11th Cir. 2012).
Petitioner filed the instant § 2255 petition on January 21, 2014 (Doc. 1).
Title 28 U.S.C. § 2255 provides federal prisoners with an avenue for relief under limited circumstances:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a) (2015). If a court finds a claim under § 2255 to be valid, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. at § 2255(b). To obtain this relief on collateral review, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982) ().
Under § 2255(b), unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court shall "grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." The Eleventh Circuit Court of Appeals has explained, "[a] habeas corpus petitioner is entitled to an evidentiary hearing on his claim 'if he alleges facts which, if proven, would entitle him to relief.'" Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (quoting Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989)). However, "if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro v. Landrigan, 550 U.S. 465, 474 (2007); see also Aron v. United States, 291 F.3d 708, 715(11th Cir. 2002) ().
To prevail on a claim of ineffective assistance of counsel, Petitioner must show that: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). These two elements are commonly referred to as the performance and prejudice prongs. Reece v. United States, 119 F.3d 1462, 1464 n.4 (11th Cir. 1997). If a petitioner fails to establish either prong, the Court need not consider the other prong in finding that there was no ineffective assistance of counsel. Strickland, 466 U.S. at 697.
A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals:
[The test for ineffective assistance of counsel] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
The Strickland standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). It falls upon a petitioner alleging ineffective assistance in this context to establish that counsel's performance was deficient and that counsel's deficient performance "affected the outcome of the plea process." Id. at 59. To establish prejudice under the Hill test, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would ... have pleaded [not] guilty and would ... have insisted on going to trial." Id. A mere allegation by a defendant that he would have insisted on going to trial but for counsel's errors, although required, is insufficient to establish prejudice; rather, the court will look to the factual circumstances surrounding the plea to determine whether the defendant would have proceeded to trial. See Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001); United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990).
Petitioner asserts that his guilty plea was involuntary and unknowing because trial counsel failed to (Doc. 2 at 8). This claim appears to rest upon Petitioner's insistence that the government did not have sufficient evidence to convict him of conspiracy because he merely had a buyer/seller relationship with his supplier; he never organized orsupervised anyone within the conspiracy; and he was addicted to methamphetamines and only sold drugs to support his addition.2 Id. at 9. Petitioner argues:
[H]ad Mr. Ostrander conducted an adequate investigation into these facts and laws pertaining to the instant case, would have alerted him to the fact that his client was not guilty of a conspiracy to distribute and to distribute 50 grams or more of methamphetamine, nor was he a leader, organizer, or manager within the conspiracy, as was alleged.
(Doc....
To continue reading
Request your trial