STEPHANM B. VIDMAR, Magistrate Judge.
THIS MATTER is before the Court on Defendant/Petitioner (hereinafter "Petitioner") Acxel Barrera-Muñoz's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence . . . [CV Doc. 1],
On August 23, 2011, Petitioner was charged by superseding indictment with: (1) Conspiracy, in violation of 21 U.S.C. § 846; (2) Possession with Intent to Distribute 5 Kilograms and More of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and Aiding and Abetting in violation or 18 U.S.C. § 2; and (3) Possession with Intent to Distribute 1 Kilogram and More of Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and Aiding and Abetting, in violation of 8 U.S.C. § 2. [Doc. 32, filed in 11-cr-1065]. On May 8, 2012, Petitioner entered into a plea agreement with the Government pursuant to which he pled guilty to Count 2 of the superseding indictment. [CR Doc. 76]. That offense carried a 10-year mandatory minimum sentence. See id.; 21 U.S.C. § 841 (b)(1)(A)(ii). "The only exception to the mandatory minimum is when a court finds that a defendant meets the five elements of § 3553(f), the so-called `safety valve' provision." United States v. Chavez, No. 09-8019, 355 F. App'x 142, 145 (10th Cir. Dec. 7, 2009) (unpublished) (citing 18 U.S.C. § 3553(f); United States Sentencing Commission,
Petitioner's plea agreement provided that Petitioner "may be eligible for the `safety valve' provisions" of § 3553(f). [CR Doc. 76] at 3. However, because Petitioner was still on probation for a California driving-under-the-influence conviction at the time he committed the drug offenses, he was found to be ineligible for safety valve relief
Petitioner raises four claims based on ineffective assistance of counsel. First, he claims that his counsel was ineffective for failing "to fully investigate my case and determine i [sic] was not eligible for the safety valve provision [of the Guidelines]." [CV Doc. 1] at 4. Second, he claims that counsel was ineffective for failing to file a motion to suppress the evidence against him. Id. Third, he claims that his attorney:
Id. Fourth, he claims that his attorney made "nonsensical arguments" and "arguments not based in the law or facts" at his sentencing hearing." Id.
Although three of Petitioner's four claims most likely would have been barred by the appellate waiver provision in the plea agreement, surprisingly, the Government does not invoke the waiver in its Response. Thus, the waiver is waived. See United States v. Calderon, 428 F.3d 928, 930-31 (10th Cir. 2005). Instead, the Government argues that Petitioner's claims of ineffective assistance of counsel are without merit. [CV Doc. 11] at 4-9.
The test for making a claim of constitutionally ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must satisfy a two-part test:
466 U.S. at 687. Both showings must be made to satisfy the Strickland standard. Id. The Court is not required to address both prongs of the standard if the defendant makes an insufficient showing on one of the prongs. Id. at 697. In applying the two-part Strickland test, a court may address the performance and prejudice components in any order. Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005).
The appropriate standard for attorney performance is that of reasonably effective assistance; the defendant must demonstrate that counsel's representation, considering all the circumstances, fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland at 687-88. For counsel's performance to be constitutionally ineffective, it must have been "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995)). In evaluating an attorney's performance, the court must be highly deferential:
Strickland, 466 U.S. at 689 (internal quotation marks omitted). In applying this test, the Court must give considerable deference to an attorney's strategic decisions and "recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Finally, "[n]either hindsight nor success is the measure" of whether counsel was effective, and "effective" is not necessarily synonymous with victorious or flawless. Dever vfx. Kan. State Penitentiary, 36 F. 3d. 1531, 1537 (10th Cir. 1994). Rather, to be considered ineffective assistance of counsel, "the representation must have been such as to make the [proceeding] a mockery, sham, or farce, or resulted in the deprivation of constitutional rights." Id. (citing Lorraine v. United States, 444 F.2d 1, 2 (10th Cir. 1971)).
Petitioner claims that his counsel "failed to investigate my criminal history and advise me that I did not qualify for the safety valve [provisions of the Guidelines]." [CV Doc. 1] at 4. In response to this claim, Mr. McIntyre states in his Affidavit, "When I first met the defendant, I asked him as I do every one of my clients, whether he had a criminal history. . . . The defendant told me he had no criminal history." [CV Doc. 11-1] at 2. This testimony is not disputed. It is unclear exactly what Petitioner claims his attorney failed to do. If Petitioner means to suggest that his attorney should have investigated his criminal history despite being told by Petitioner that Petitioner had no criminal history, I find that such conduct does not rise to the level of deficient performance. Petitioner has offered no authority—and the Court is unaware of any—to support the claim that an attorney, having been told by his client that the client has no criminal history, nevertheless has a duty to conduct an independent investigation to determine whether the client has told the truth. Petitioner has failed to show that counsel's conduct fell below an objective standard of reasonableness. I find, therefore, that this claim fails to satisfy the first prong of the Strickland test.
Petitioner claims that the arresting officer violated his Fourth Amendment rights by searching his vehicle without his consent, and that his counsel was subsequently ineffective for failing to file a motion to suppress the fruits of that search. [CV Doc. 1] at 4. This claim is factually inaccurate. Petitioner's co-defendant filed a motion to suppress all evidence obtained as a result of the search. See Motion to Suppress all Tainted Evidence due to Illegal Seizure and Search and Illegal Arrest of Defendant. [CR Doc. 44]. Petitioner's counsel filed a Motion for Joinder [in] Motion to Suppress, [CR Doc. 58], which the district judge granted, [CR Doc. 62]. See also Affidavit of Cliff McIntyre, [CV Doc. 11-1] at 2, ¶ 8 (discussing his joinder in motion to suppress and how the motion would most likely have been denied). The motion to suppress was never heard because both defendants decided to accept plea agreements. [CV Doc. 11-1] at 2, ¶ 8. This claim, therefore, is without merit.
Petitioner claims that his attorney "assured me I qualified for the safety valve and thus a sentence below the minimum statutory mandatory [sic]." [CV Doc. 1] at 4. He claims further that if he had known that his prior conviction placed him in criminal history category II (and thus ineligible for safety valve relief), he would have "retained the services of an attorney in California in order to address [the prior conviction]." Id. I find that this claim fails to satisfy the Strickland standard, for three reasons. First, the Tenth Circuit has held that "[a] miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel." United States v. Gigley, 213 F.3d 509, 517 n.3 (10th Cir. 2000) (quoting United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993)). Thus, even if the allegations were true, this claim would still fail to satisfy the first prong of Strickland.
Second, when a prisoner claims ineffective assistance of counsel in connection with a plea agreement, "in order to satisfy the `prejudice' requirement, the [prisoner] must show that there is a reasonable probability that, but for counsel's errors, he would have not pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Nowhere does Petitioner state that, but for counsel's alleged errors, he would have insisted on going to trial. See [CV Doc. 1]. Instead, he claims that, but for counsel's alleged errors, he would have hired another attorney to "address" his prior conviction. Id. at 4. These allegations fail to satisfy the second (prejudice) prong of the Strickland test.
Third, Petitioner cannot show prejudice because at his change of plea hearing the Magistrate Judge made it very clear that there was no guarantee that he would qualify for safety valve relief, despite what his attorney might have told him. After Petitioner was advised of the maximum statutory penalties (including imprisonment for not less than 10 years, and up to life), the following exchange occurred:
[CR Doc. 115] at 6-8. Where, as here, a defendant is informed about the uncertain nature of his attorney's sentencing predictions during the plea colloquy, mere allegations of prejudice are insufficient to satisfy the prejudice prong of Strickland. See Gordon, 4 F.3d at 1571 ("Given the fact that Defendant pleaded guilty even after being so informed by the Court, his mere allegation that, but for original counsel's failure to inform him about the use of relevant conduct in sentencing, he would have insisted on going to trial, is insufficient to establish prejudice.") Thus, even if counsel's advice had been constitutionally deficient—which was not the case—this claim would still fail because it does not satisfy the prejudice prong of Strickland.
Petitioner claims that his attorney made "nonsensical arguments" and "arguments not based in the law or facts" at his sentencing hearing. [CV Doc. 1] at 4. He claims further that counsel was ill-prepared and that "his performance fell well below the standard accepted in the community for defense counsel." Id. Petitioner's allegations are merely conclusory. He makes no attempt to explain what his attorney should have done differently, or how he was prejudiced by what his attorney did or failed to do.
To prevail in a § 2255 action, a petitioner must show a defect in the proceedings that resulted in "a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974) (internal quotation marks omitted). The burden is on the petitioner to allege facts that, if proven, would entitle him to relief. Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995). To meet this burden, a petitioner's "allegations must be specific and particularized, not general or conclusory." Id. at 1471; see United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (Conclusory allegations are insufficient to support an ineffective assistance of counsel claim.). "[S]heer speculation" that counsel might have done something different that might have resulted in Petitioner receiving a shorter sentence "does not rise to the level of a constitutional claim." United States v. Romero-Gallardo, No. 03-4126, 113 F. App'x 351, 354 (10th Cir. 2004) (unpublished) (petitioner must show that, but for counsel's errors, the result of the sentencing proceeding would have been different).
Here, Petitioner fails to establish that he was prejudiced by any action taken by his attorney in connection with sentencing. Petitioner was facing a potential term of imprisonment of ten years to life. He received a sentence of 120 months (one month below the Guideline range minimum). See [CR Doc. 119] at 22-23. Counsel attempted to reduce that term even more. See generally [CR Doc. 119]. Although the attempt was unsuccessful, that does not establish ineffective assistance. "Neither vigor nor skill can overcome truth. Success is not the test of effective assistance of counsel." Johnson v. United States, 380 F.2d 810, 812 (10th Cir. 1967). I have reviewed the transcript of Petitioner's sentencing hearing. I note that Petitioner's counsel presented testimony, introduced exhibits, and vigorously argued for a sentence below the mandatory minimum. See [CR Doc. 119]. Petitioner has not suggested any legitimate arguments his counsel failed to make, and I cannot imagine any. Counsel was simply fighting a losing battle. His representation did not fall below an objective standard of reasonableness. I find, therefore, that this claim is without merit.
For all the reasons set forth above, I find that Petitioner's allegations fail to show that he received ineffective assistance of counsel. I further find that Mr. McIntyre's affidavit and the records in this case and Petitioner's underlying criminal case fully support a finding that Petitioner's counsel's performance did not fall below an objective standard of reasonableness. I further find that Petitioner has failed to establish that he suffered any prejudice as a result of counsel's alleged errors. Accordingly, I find that he is not entitled to relief under 28 U.S.C. § 2255. Finally, because it is possible to resolve the issues on the pleadings and the record clearly establishes that Petitioner is not entitled to relief, I find that an evidentiary hearing is not necessary. See § 2255; United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). I therefore recommend that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence... [Doc. 1] be
