United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
matter is before the court on Petitioner Alejandro Quinones
Leyva's Motion to Vacate (ECF No. 325). Petitioner
asserts that the ineffective assistance of his counsel
violated his Sixth Amendment right to counsel. (ECF No. 360 at
6.) The Government did not respond to Petitioner's
Motion. For the reasons set forth below, the court
DENIES Petitioner's Motion to Vacate
(ECF No. 325).
FACTUAL AND PROCEDURAL BACKGROUND
September 15, 2015, Petitioner was indicted for possession
with intent to distribute cocaine in violation of 21 U.S.C.
§ 846. (ECF No. 2.) On March 18, 2016, Petitioner
entered into a Plea Agreement in which he agreed to plead
guilty to being an illegal alien in possession of a firearm
in violation of 18 U.S.C. § 922(g)(5) in return for the
dismissal of the possession with intent to distribute charge
and a sentence of 96 months of incarceration. (ECF No. 232.)
On March 21, 2016, in accordance with the Plea Agreement, the
Government filed a Superseding Information charging
Petitioner with violating 18 U.S.C. § 922(g)(5) (ECF No.
228), and on March 22, 2016, Petitioner pleaded guilty to
that charge (ECF No. 240). On July 7, 2016, Petitioner was
sentenced to 96 months of incarceration. (ECF No. 280.)
October 28, 2016, Petitioner filed this Motion to Vacate (ECF
No. 325), and on February 6, 2017, Petitioner filed a
Supporting Memorandum of Law (ECF No. 360).
prisoner in federal custody under sentence of a federal court
may petition the court that imposed the sentence to vacate,
set aside, or correct the sentence. 28 U.S.C. § 2255.
The prisoner is entitled to relief if (1) the sentence was
imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose such sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. Id. A motion made
pursuant to 28 U.S.C. § 2255 requires a showing of
either a constitutional or jurisdictional error or a
“fundamental defect” resulting in a
“complete miscarriage of justice.” Davis v.
United States, 417 U.S. 333, 346 (1974); Hill v.
United States, 368 U.S. 424, 428 (1962). A petitioner
collaterally attacking his sentence or conviction pursuant to
§ 2255 bears the burden of proving his grounds for
collateral attack by a preponderance of the evidence.
White v. United States, 352 F.Supp.2d 684, 686 (E.D.
Va. 2004) (citing Miller v. United States, 261 F.2d
546 (4th Cir. 1958)). In ruling on a § 2255 motion, the
court may dismiss the motion without a hearing where it
conclusively shows from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief. 28 U.S.C. § 2255(b) (noting that
a hearing is not required on a § 2255 motion if the
record of the case conclusively shows that petitioner is
entitled to no relief).
ineffective assistance of counsel claim is properly raised in
a 28 U.S.C. § 2255 action. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir, 1999). To be
eligible for habeas corpus relief on an ineffective
assistance of counsel claim, the defendant bears the burden
of satisfying the two-part test announced in Strickland
v. Washington. 466 U.S. 668 (1984). First, the defendant
must establish counsel's performance was deficient,
id. at 687, and secondly, the defendant must
demonstrate that any deficiencies in defense counsel's
performance were prejudicial to the defense. Id. at
order to establish counsel's deficiency, counsel's
performance must fall below an “objective standard of
reasonableness.” Id. at 687-88. A convicted
defendant making a claim of ineffective assistance must
identify acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment.
Id. at 690. The court reviews “the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct.” Id. Then, in light of
all circumstances, the court must determine whether the
identified acts or omissions were outside the wide range of
professional competent assistance. Id.
“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
the prejudicial prong, the defendant must establish that any
error by counsel, even if professionally unreasonable, was
prejudicial. United States v. Morrison, 449 U.S.
361, 364-65 (1981). An error does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment. Id. It is not enough for the
defendant to show that the errors had some conceivable effect
on the outcome of the proceeding because almost every act or
omission of counsel would meet that test. United States
v. Valenzuela-Bernal, 458 U.S. 858, 866-67 (1982). In
Strickland, the Supreme Court has specifically noted
that not every error that conceivably could have influenced
the outcome undermines the reliability of the result of the
proceeding. Strickland, 466 U.S. at 693.
asserts that his counsel was ineffective in four (4)
different ways. (ECF No. 360.) First, counsel did not
properly investigate the underlying facts of Petitioner's
case. Second, counsel did not argue for a lesser plea
agreement, specifically one that excluded § 924(e).
Third, counsel did not appropriately review the plea
agreement with Petitioner and inform him of the full effects
of the plea agreement. Fourth, counsel did not timely file an
appeal. These allegations are addressed individually below.
Failure of Counsel to Adequately Investigate Petitioner's
alleges that he requested to review the evidence in the case
with counsel in order to demonstrate weaknesses in the
Government's case and that his counsel refused to do so.
(ECF No. 360 at 17.) Specifically, Petitioner asserts that
review of a recorded phone call between him and Alvaro
Valencia would have demonstrated that Petitioner was not
involved in the conspiracy. (Id.)
Plea Agreement, Petitioner represented to the court that he
had met with his attorney and discussed his case a sufficient
number of times. (ECF No. 232 at ¶ 7.) Specifically,
Petitioner “discussed possible defenses” with his
attorney. (Id.) These defenses would have included
the potential failure of the Government to meet its burden of
proof, e.g., the potentially exculpatory nature of
the phone call with Alvaro Valencia. Additionally, the court
inquired about Petitioner's satisfaction with his counsel
when Petitioner entered his plea. Given the propensity of
convicted defendants to second guess the actions of their
counsel, Petitioner must present specific evidence of his
counsel's failure. Petitioner ...