MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Jose Manuel Avalos Banderas ("Avalos-Banderas") has filed a Motion to Vacate under 28 U.S.C. § 2255 supplemented by a Memorandum and Declaration. (Filings 100 and 101.) Avalos-Banderas asserts that his defense counsel was ineffective. (Id.) Pursuant to Rule 5 of the Rules Governing Section 2255 Proceedings, I called for a response from the government. (Filing 103.)

The government submitted a 21-page brief along with an Index of Evidentiary Materials including Exhibits A through N. (Filings 106 and 107.) Among other things, those exhibits included contemporaneous notes made by defense counsel.1 In turn, Avalos-Banderas submitted a Reply including his Declaration.2 (Filing 112.) Like the government, Avalos-Banderas repeatedly asserts that an evidentiary hearing is unnecessary. For example, Avalos-Banderas argues in his Reply that there "is no need to hold an evidentiary hearing" (id. at CM/ECF p. 21) and he explicitly requests that "this Court ... forego conducting an evidentiary hearing...." (Id. at CM/ECF p. 22.)

While I agree with Avalos-Banderas that an evidentiary hearing is unnecessary, I disagree that his claims have merit. Indeed, they border on frivolous. Accordingly, for the reasons set forth below, the section 2255 motion is denied with prejudice.

I. BACKGROUND

Avalos-Banderas was convicted and sentenced to 365 months in prison after a jury found him guilty of conspiring to distribute and possess with intent to distribute at least 500 grams of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1). At trial, at sentencing, and on appeal, Avalos-Banderas was represented by John Aman ("Aman"). Aman is a very experienced and zealous lawyer who was appointed by the court.

After the trial, but before he was sentenced, Avalos-Banderas was also represented by Stuart Dornan ("Dornan") for a short period of time when Aman became ill. (Filing 53.) Like Aman, Dornan is a very experienced and zealous lawyer. Dornan's background includes service as an FBI agent and as the chief prosecutor (County Attorney) for Nebraska's largest county.

Dornan filed various motions regarding sentencing including an assertion that "Defendant denies any involvement with methamphetamine." (Filing 57 at CM/ECF p. 1.) Before sentencing, and after Aman recovered, Dornan was granted leave to withdraw. (Filing 64.) Avalos-Banderas makes no claims against Dornan.

Avalos-Banderas received an obstruction of justice enhancement for threatening trial witnesses. (Filing 71 at CM/ECF pp. 10-11 (Presentence Investigation Report ("PSR") ¶¶ 39, 46).3 Avalos-Banderas was held responsible for between 5 and 15 kilos of methamphetamine. (Id. at CM/ ECF p. 11 (PSR ¶ 42).) His criminal history score was III and that score was generated by two particularly violent crimes against a woman for which he was serving a state prison sentence. (Id. at CM/ECF pp. 12-13) (PSR ¶¶ 52-55).)

Avalos-Banderas' Guideline range was 292 to 365 months in prison. (Filing 72.) I imposed a sentence of 365 months in prison, consecutive to the state prison sentence, because I was "absolutely persuaded that the defendant is a dangerous individual" who "will harm someone ... if he is not incapacitated for a very long time...." (Filing 89 at CM/ECF p. 61.)

Aman prosecuted an appeal, but Avalos-Banderas' conviction and sentence were affirmed. United States v. Banderas, 411 Fed.Appx. 932 (8th Cir.2011) (determining, among other things, that (1) the evidence was sufficient to support the conviction; (2) the "evidence at the sentencing hearing amply supports the court's conclusion that Banderas engaged in conduct warranting the obstruction-of-justice enhancement when he made threatening statements during his trial to the witnesses testifying against him"; (3) the district court properly counted two prior sentences for criminal conduct that was separated by an intervening arrest; and (4) the sentence was not procedurally deficient or substantively unreasonable).

Immediately before jury selection, I held a hearing on Avalos-Banderas' request for a new lawyer. (See Filings 28 and 111.) Aman provided a detailed explanation of Avalos-Banderas' request for a new lawyer, Avalos-Banderas' demand for a speedy trial and Aman's efforts while representing Avalos-Banderas.

(Filing 111 at CM/ECF pp. 2-5.)

I gave Avalos an opportunity to respond. The following ensued:

(Id. at CM/ECF pp. 5-6.)

After the defendant spoke, and regarding Avalos-Banderas' concern about receiving the names of two police officers from Aman rather than only one name, Aman informed me that there were in fact two police officers whose names were responsive to Avalos-Banderas' questions. Aman provided both names to Avalos-Banderas. (Id. at CM/ECF p. 6.) Avalos-Banderas made no effort to dispute that assertion.4

As pertinent to Avalos-Banderas' claim that Aman was ineffective, it is noteworthy that, when given the chance, Avalos-Banderas did not deny Aman's detailed recitation of what he had done while representing Avalos-Banderas. Instead, Avalos-Banderas asserted that Aman had lied to him on several occasions but Avalos-Banderas provided no details or substantiation of any kind. It is also worth noting that Avalos-Banderas expressed no desire to admit his guilt. On the contrary, Avalos-Banderas told me that "I don't even know some of these people...." Likewise, he did not dispute Aman's statement that Avalos-Banderas was demanding a speedy trial. Furthermore, Avalos-Banderas expressed no problem whatsoever in communicating with Aman.

As necessary, additional facts will be discussed as I address the merits. With that in mind, I next discuss the substance of Avalos-Banderas' section 2255 motion.

II. ANALYSIS

Avalos-Banderas argues that Aman was ineffective. Therefore, the Strickland standard must be applied. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (announcing principles for evaluation of claims of ineffective assistance of counsel under the Sixth Amendment).

In order to prevail on a claim that defense counsel rendered ineffective assistance of counsel under Strickland, the claimant must establish two things. He or she must establish (1) that "`counsel's representation fell below an objective standard of reasonableness,'"5 and (2) that "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"6 Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir.1997) (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052.)

The Supreme Court has now made clear that Strickland applies to ineffective assistance of counsel claims having to do with plea bargaining. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (reaffirming that the Strickland standard applies to plea bargaining even where the defendant has received a full and fair trial; holding, among other things, that where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed); Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (elaborating upon Strickland, and, among other things, holding that to establish prejudice as an element of a claim of ineffective assistance, where a plea offer has lapsed or been rejected because of counsel's deficient performance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time).

An evidentiary hearing is unnecessary if the claimant makes an insufficient preliminary showing on either or both prongs or the record clearly contradicts the claimant's showing on either or both prongs. Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective assistance of counsel claim; stating that no evidentiary hearing is required where "(1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.").

In general, it is sufficient to state that the files and records plainly show that Avalos-Banderas is not entitled to relief. So as not to unduly extend the length of this opinion, I will separately discuss Avalos-Banderas' main claim dealing with a plea bargain issue, and then summarily address the other claims.

Plea Bargain Claim

Condensed and summarized, Avalos-Banderas argues that Aman was ineffective because Aman gave him inadequate advice about a plea bargain. (Filing 101 at CM/ECF pp. 9-15.) However, the record does not support this claim when considered in light of the two Strickland prongs.

The record plainly shows that Aman discussed the government's plea bargain offer with Avalos-Banderas and that he declined the offer after being adequately advised of the relevant factors. For example, Aman's contemporaneous notes reflect that on December 30, 2009, Aman had a meeting with Avalos-Banderas at the state prison. (Filing 107-3 at CM/ECF pp. 1-6.) Among other things, those notes show Aman and Avalos-Banderas had a conference that lasted more than three hours during which they discussed "new disc[overy]," "possible defenses,"7 "probable" and "possible jail time," a "speedy trial" and the "applicable law." (Id. at CM/ECF p. 1.) Those notes also show that Avalos-Banderas "refused" the written non-cooperation plea agreement offered by the government — that agreement would have recommended that Avalos-Banderas' base offense level be set at 36 with no agreement on criminal history. (Id. at CM/ECF pp. 2-6.) Therefore, there is simply no basis for claiming that Aman's representation regarding the plea offer was deficient.

Moreover, and regarding the issue of prejudice, there is no reason to believe that Avalos-Banderas would have entered a guilty plea had Aman done something different. In fact, until the filing of the 2255 motion, Avalos-Banderas consistently maintained his innocence and directed his lawyers to proceed accordingly throughout the criminal case and on appeal.

For example, Aman's notes of December 30, 2009, reflect that Avalos-Banderas said that the government witnesses were "talking shit." (Id. at CM/ECF p. 1.) Furthermore, and as indicated earlier, Dornan filed a sentencing statement on behalf of Avalos-Banderas representing that "Defendant denies any involvement with methamphetamine."8 (Filing 57 at CM/ECF p. 1.) Avalos-Banderas makes no claim against Dornan and Avalos-Banderas does not argue that Dornan misrepresented his true position. Still further, and regarding his appeal, Avalos-Banderas wrote Aman and again expressed his innocence, stating things like "I know that I never physically handled such drugs nor passed on any such drugs to no one."9 (Filing 107-7 at CM/ECF p. 4). Finally, and perhaps most illustrative of his intransigence, Avalos-Banderas' behavior in threatening three trial witnesses proves beyond doubt that he had no interest whatsoever in accepting responsibility for his actions and admitting his guilt.

An additional word about "prejudice" is in order. I sentenced Avalos-Banderas to a much longer prison sentence than I might have sentenced an otherwise similarly situated offender because I thought he was extremely dangerous. He threatened three trial witnesses and his criminal history demonstrated that he was perfectly willing to hurt people with whom he had disagreements. In fact, Avalos-Banderas was then in prison for his violent conduct. No matter what, the increased punishment that I imposed cannot be attributed to Aman; Avalos-Banderas suffered that "prejudice" solely as a result of his own aggressive behavior.

Avalos-Banderas makes various assertions about why Aman's handling of the plea offer was deficient and why he was prejudiced, including that he did not have enough time to consider the offer, did not know enough about "relevant conduct," and did not understand the law of conspiracy. (Filing 101 at CM/ECF pp. 13, 38-39; Filing 112 at CM/ECF pp. 3-4.) Avalos-Banderas also asserts that he surely would have accepted the plea offer had things been better explained because he probably would have received a lesser sentence had he accepted the offer. (Filing 101 at CM/ECF pp. 10, 14, 39; Filing 112 at CM/ECF pp. 3-4.)

I reject all of these excuses. They are merely "could have, should have, and would have" rationalizations made with no credible10 supporting facts. Moreover, these arguments are obviously based upon the "distorting effects of hindsight" that the Supreme Court has cautioned against relying upon to upend a conviction or sentence.

In summary, Aman's performance regarding the plea offer was perfectly fine. But, even assuming for the sake of argument that Aman's representation was deficient, Avalos-Banderas has failed to show any prejudice. It is a certainty that he would have never accepted any deal short of an outright dismissal.

The Other Claims

Avalos-Banderas presents a hodgepodge of additional ineffective assistance of counsel claims. None of them have merit. I turn to those arguments which warrant some, albeit brief, discussion.

Avalos-Banderas attacks Aman for not using an interpreter. (Filing 101 at CM/ECF pp. 15-16, 39; Filing 112 at CM/ ECF pp. 11-13.) This claim is particularly spurious. The record is replete with letters and pleadings submitted to me or the Court of Appeals prior to the 2255 motion that were written in English and signed by Avalos-Banderas. Avalos-Banderas now claims that prison "writ" writers authored those earlier documents, and he is not responsible for them. If that is so, the same problem now appears with Avalos-Banderas' written excuses that also appear in English. How am I to determine which filings accurately represents Avalos-Banderas' thoughts and which are the product of "writ" writers whose writings do not accurately represent his views? Avalos-Banderas offers no explanation because Avalos-Banderas' assertions are untrue.

The claim that Avalos-Banderas needed an interpreter to confer with Aman is plainly contradicted by the record. When given the chance to explain his problems with Aman at the hearing held before me on the day of trial, Avalos-Banderas, with the assistance of an interpreter, made no mention of being unable to effectively communicate with Aman.11 Still further, and critically, the record reflects that Avalos-Banderas can adequately read, write and speak the English language as indicated by the trial testimony of two police officers and others. (See, e.g., Filing 51 at CM/ ECF p. 26:5-15 (Investigator Ripley) (conversation during undercover drug buy); Id. at CM/ECF pp. 99-7-15, 100-104:15 (Investigator Snoad) (conversation during interview requested by Avalos-Banderas and Miranda waiver).12)

Next, Avalos-Banderas claims he had insufficient or inadequate access to discovery materials. (Filing 101 at CM/ ECF pp. 17-18; Filing 112 at CM/ECF pp. 13-16.) I reject that assertion because the record plainly shows otherwise. At the hearing on Avalos-Banderas' motion for a new attorney, Aman carefully detailed the discovery materials he provided or described to Avalos-Banderas; Avalos-Banderas did not dispute Aman's description. (Filing 111 at CM/ECF pp. 2-5.) Aman's notes and email correspondence between Aman and the prosecutor also show that Aman was thoroughly describing to Avalos-Banderas the evidence against him. (See, e.g., Filings 107-2 and 107-4.) There is simply no doubt that Avalos-Banderas knew what the government's evidence was going to be at trial. In fact, Avalos-Banderas fails to detail what specific discovery he needed but was not provided.

Avalos-Banderas additionally claims that Aman was ineffective because he did not file a motion for a bill of particulars. (Filing 101 at CM/ECF pp. 18-20; Filing 112 at CM/ECF pp. 16-17.) This argument is silly. The file reflects that the government gave Aman unfettered access to its files, and Aman shared that information with Avalos-Banderas. There was no need for a bill of particulars and no judge in our court would have granted one.

Avalos-Banderas argues that Aman should have filed a motion in limine to exclude the testimony of Kelly Jeffrey about Avalos-Banderas' call to Rachel Stokey asking her to contact "Pony" to get money to bond him out of county jail. (Filing 101 at CM/ECF pp. 20-22; Filing 51 at CM/ECF p. 23-24.) Because this evidence was both relevant and not overly prejudicial, I would have never granted such a motion and therefore Aman could not have been deficient. Moreover, given the strong evidence against Avalos-Banderas, the failure to file such a motion would not have changed the outcome even assuming that some judge might have granted a motion in limine on this point.

Avalos-Banderas complains that Aman should have challenged the composition of the jury, objected to the government's use of its peremptory challenges, and requested a poll of the jury. I reject each of these arguments as simply more "make weight" type complaints.

The jury composition argument fails for several reasons including most especially that our jury selection plan was in full compliance with requirements of the law13, because there has been no showing that any racial or ethnic group was systematically excluded and because the jury composition argument has been defaulted since it was not raised on direct appeal.14 See, e.g., United States v. Moore, No. 4:09CR3091, 2012 WL 1975385, at *2 (D.Neb. June 1, 2012) (discussing relevant law and denying section 2255 motion attacking, on "fair-cross-section" grounds, conviction of a black male). The Batson15 argument fails because there is no showing that any of the government's challenges were motivated by race or ethnicity. The polling argument fails because there is no showing that any of the jurors were uncertain. See, e.g., United States v. Costa, 691 F.2d 1358, 1363-1364 (11th Cir.1982) (concluding failure of defendant's trial counsel to poll the jury did not constitute ineffective assistance, where there was nothing in the record to indicate any juror was uncertain of the verdict). After all, the jury verdict form (which all counsel agreed, in the presence of Avalos-Banderas, was proper) required the foreperson to attest in writing that the jury's verdict was unanimous. (Filing 41 (verdict form with foreperson's signature redacted) ("The Foreperson shall sign and date the verdict form, and such signature shall mean that the verdict of the jury was unanimous."); filing 42 (foreperson's signature).)

Avalos-Banderas asserts that Aman erred because he failed to challenge defendant's criminal history category of III.16 (Filing 101 at CM/ECF p. 38; Filing 112 at CM/ECF pp. 19-20.) As noted earlier, the Eighth Circuit Court of Appeals specifically addressed the criminal history issue on appeal that Avalos-Banderas now uses as a predicate for his ineffective assistance of counsel claim. Avalos-Banderas cannot relitigate that issue in this section 2255 proceeding. See Davis v. United States, 673 F.3d 849, 852 (8th Cir.2012) (claims that are raised and decided on direct appeal cannot be relitigated on a subsequent motion to vacate). Moreover, the Eighth Circuit Court of Appeals has conclusively determined that Aman made no error in failing to challenge the criminal history issue because it determined that the criminal history score was correctly calculated. Banderas, 411 Fed. Appx. at 933.

Finally, Avalos-Banderas argues that Aman failed to obtain a full transcript before filing the appellate brief. (Filing 101 at CM/ECF pp. 31-32; Filing 112 at CM/ECF p. 20.) Because a trial transcript was ordered and appears of record prior to the briefing date, Avalos-Banderas is apparently arguing that Aman should have had the jury selection or sentencing proceedings transcribed. Noting that the jury selection and sentencing proceedings were captured by digital audio recording (filing 28 beginning at 7:59; filing 67; filing 68) which were immediately available to Aman and the Eighth Circuit Court of Appeals and noting further that the Eighth Circuit Court of Appeals later ordered a transcript of the sentencing proceeding, Avalos-Banderas has failed to show how he was prejudiced by this alleged error. Still further, Aman was not required to order every conceivable transcript. He was required to order only those transcripts, if any, that a reasonable lawyer, objectively judged, would have ordered to adequately prepare for appeal. Avalos-Banderas has not come close to showing that Aman's decision violated the relevant standard of care.

III. CONCLUSION

The files and records plainly show that Avalos-Banderas had the assistance of a dedicated lawyer who performed competently. Even if that were not the case, he has failed to show prejudice.

Accordingly,

IT IS ORDERED that

JUDGMENT

IT IS ORDERED that judgment is entered for the United States of America and against the defendant, Jose Manuel Avalos Banderas, providing that he shall take nothing and the defendant's section 2255 motion is dismissed with prejudice.