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Ponce-Barrueta v. United States

United States District Court, D. South Carolina, Florence Division

January 4, 2019

Carlos Juan Ponce-Barrueta, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's pro se motion to vacate pursuant to 28 U.S.C. § 2255 filed on March 3, 2017. [ECF #229]. Also currently pending is the Government's motion for summary judgment filed on March 15, 2017. [ECF #242]. Petitioner alleges two grounds in his motion to vacate his sentence: (1) trial counsel failed to advise him about the consequences in failing to file a direct appeal; and (2) trial counsel did not adequately challenge his guidelines sentence range. [ECF #229].

         On March 15, 2017, the Government filed a motion for summary judgment arguing summary judgment should be entered on behalf of the government because the motion to vacate fails to set forth any basis for relief. On March 15, 2017, a Roseboro Order was issued advising Petitioner that a motion to dismiss and/or for summary judgment had been filed and that his failure to respond could result in the dismissal of his case. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). Petitioner filed a response to the government's motion on June 30, 2017. [ECF #264]. For the reasons stated below, the Court grants Respondent's motion for summary judgment.[1]

         Procedural History

         On or about April 28, 2015, Petitioner was indicted along with several co-defendants in a seven count Indictment, which charged Petitioner with a conspiracy to distribute methamphetamine in violation of Title 21, United States Code, Section 846. [ECF #71]. In the second, fourth, fifth and sixth counts of the Indictment, Petitioner was charged with substantive violations for distribution of methamphetamine in violation of in violation of Title 21, United States Code, Section 841(a)(1). [ECF #71]. In the third and seventh counts of the Indictment, Petitioner was charged with violations of in violation of Title 18, United States Code, Section 924(c) for use of a firearm during a drug trafficking crime. [ECF #71].

         On September 15, 2015, Petitioner, represented by counsel, pled guilty to Count I of the Indictment, which alleged a conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a substance containing a detectable amount of methamphetamine pursuant to a Rule 11(C)(1)(c) plea agreement, resulting in a stipulated sentence of 240 months. [ECF #148]. Included within the plea agreement was a waiver of Petitioner's right to contest the conviction by either direct appeal or other post-conviction action. [ECF #148, p. 7]. The U.S. Probation Office prepared a presentence investigation report (“PSR”). Petitioner's total offense level was 43 and his advisory guideline range was Life. The Court sentenced Petitioner to the stipulated sentence of 240 months imprisonment. [ECF #192]. Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on March 3, 2017. [ECF #229]. The Government filed a response in opposition, along with a motion for summary judgment on March 15, 2017. [ECF #241; ECF #242]. Petitioner filed a response on June 30, 2017.

         Applicable Law

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, ‘will not be allowed to do service for an appeal.' (internal citation omitted) For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. (internal citations omitted). Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice'”. Stone v. Powell, 428 U.S. 465, n. 10 (1976); see also United States v. Boyd, No. 02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002) (“Non-constitutional claims that could have been raised on direct appeal . . . may not be raised in a collateral proceeding under § 2255.”). There is a one year period of limitation for a motion made under this statute. 28 U.S.C. § 2255(f).

         Legal Standard for Summary Judgment

         Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2) (2009). The movant has the burden of proving that summary judgment is appropriate. Once the movant makes the showing, however, the opposing party must respond to the motion with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

         When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         "[O]nce the moving party has met [its] burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. See Id. Rather, the nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. Celotex Corp., 477 U.S. at 322.

         Discussion

         Petitioner requests that his sentence be vacated pursuant to 28 U.S.C. § 2255 on two grounds: (1) he alleges his trial counsel did not adequately explain the consequences resulting from the failure to file a direct appeal; and (2) he alleges counsel performed inadequately at sentencing by failing to investigate the drug weights attributable to him and the applicability of the role enhancement to him. With respect to ground one, Petitioner claims that counsel did not advise him that “if he did not appeal, then he forfeited any chance of challenging the sentence.” [ECF #264, p. 1]. He alleges that due to counsel's inadequate advice, he was deprived of his right to appeal, including the ability to challenged the constitutionality of the statutes applied in his case. To seek relief on claims of ineffective assistance of trial counsel, Petitioner must make the proper showing under Strickland v. Washington. Strickland provides that a Petitioner must prove both of the following: (1) trial counsel's performance was so deficient that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) trial counsel's deficient performance ...


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