United States District Court, D. Minnesota
MEMORANDUM AND ORDER
PAUL A. MAGNUSON, District Judge.
This matter is before the Court on Defendant's Petition under 28 U.S.C. § 2255. For the reasons that follow, the Petition is denied.
On September 22, 2011, Defendant pled guilty to food stamp fraud in violation of 7 U.S.C. § 2024(b). This Court sentenced Defendant to a 41-month term of imprisonment on May 8, 2012. This Court also ordered restitution in the amount of $2.4 million. Before his voluntary surrender date, Defendant absconded to Central America. In September 2012, Defendant was captured, brought back to the United States, and charged with failure to surrender under 18 U.S.C. § 3146(a)(2).
On November 29, 2012, Defendant pled guilty and, after waiving his right to an additional PSR, proceeded immediately to sentencing. The Court sentenced Defendant to 12 months and one day of imprisonment to run consecutive to the 41-month sentence imposed in the fraud case.
On January 3, 2013, Defendant filed a motion for extension of time to file a notice of appeal in which he set forth the basis for his appeal, but did not provide an explanation as to why he did not comply with the 14-day notice of appeal period. (Docket No. 29.) He simultaneously filed a Notice of Appeal with the Eighth Circuit. (Docket No. 30.) The Court denied the motion for an extension, concluding that Defendant had failed to show excusable neglect or good cause. (Docket No. 32.) The Eighth Circuit dismissed the appeal as untimely. (Docket No. 40.)
Defendant raises the following three claims in his petition for habeas relief: (1) that his counsel was ineffective for failing to challenge his criminal history score as set forth in the presentence investigation report ("PSR"); (2) his counsel was ineffective for failing to file an appeal; and (3) the Court erred in not allowing him an extension in which to file a notice of appeal. None of Defendant's claims has merit.
A. Ineffective Assistance of Counsel
In order to prove ineffective assistance of counsel, a petitioner must show deficient performance, that is, that "counsel's representation fell below an objective standard of reasonableness, " and actual prejudice, that 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 (1984). "[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.
1. PSR Waiver
Defendant contends that his counsel was ineffective for failing to object to the PSR waiver and for failing to object to his criminal history score. Defendant implicitly contends that had the Court ordered an additional PSR, the Probation Office would have recommended a lower criminal history score in a new PSR. Defendant expressly waived this argument in his plea colloquy. The Court inquired in detail as to the PSR waiver and Defendant unequivocally informed the Court that he agreed to waive the PSR. (See Docket No. 38 at 15-17.) Defendant also told the Court that he understood that criminal history category IV would apply and that his sentencing range was 12-18 months. (Id. at 5; see also id. at 6, 18.) He neither objected to the criminal history category or the sentencing range during his plea colloquy or his sentencing.
Moreover, Defendant has not shown, nor can he, that a new PSR would have yielded a different criminal history score. Indeed, although Defendant was in criminal history category II when he was sentenced in the food-stamp fraud case, his score necessarily increased as a result of that offense. The parties properly determined that Defendant had an adjusted criminal history category of IV based on his fraud conviction and the fact that he committed the instant offense while under sentence in the fraud case. See U.S.S.G. § 4A1.1(a), (d). ...