United States District Court, D. Minnesota
RICHARD H. KYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's June 10, 2016,
Motion to Vacate, Set Aside or Correct Sentence, brought
under 28 U.S.C. § 2255. (Doc. No. 174). Defendant's
Motion will be denied for the reasons discussed below.
AND FACTUAL HISTORY
19, 2014, Defendant Raul Villafan Castillo was charged in an
Indictment with conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846
(Count 1). Doc. No. 1. Paul Applebaum, Esq. represented
Defendant, and after undertaking representation he filed a
number of pretrial motions on behalf of Defendant. See,
e.g. Doc. Nos. 32-42. After the parties addressed each
other's initial pre-trial motions, by August 4, 2014,
Defendant agreed to plea terms and filed through his counsel
a letter withdrawing his motions. Doc. No. 43. The matter was
set for plea proceedings, to occur on September 5, 2014. Doc.
scheduled for plea proceedings, Defendant on September 5,
2014, asked for more time to consider the terms offered by
the Government, and the matter was rescheduled for September
12, 2014. Doc. No. 58. Defendant balked at the proposed plea
terms on this latter date, and the matter was scheduled for
trial. Doc. Nos. 59-60. On October 7, 2014, the grand jury
superseded the indictment, to add multiple counts of
methamphetamine distribution against Defendant and his
co-defendants, in violation of 21 U.S.C. §§
841(a)(1)(A) (Count 1), 841(b)(1)(B) (Counts 3, 5, 6, 7, 9,
10 and 11) and 841(b)(1)(C) (Counts 2, 4, 8 and 12). Doc. No.
63. The parties again engaged in pre-trial motions, including
multiple motions filed by Mr. Applebaum on Defendant's
behalf. See, e.g., Doc. Nos. 73, 75-83.
litigating a second wave of pretrial motions, the matter was
set for trial, to begin on Monday, February 23, 2015. Doc.
No. 126. As part of the trial preparation process, the
Government filed eleven in limine motions, Doc. No.
125, and the grand jury filed a second superseding
indictment. Doc. No. 127. The second superseding indictment
clarified by statutory reference at each count the quantum of
drugs attributable to Defendant and his co-defendant Oscar
Villafan. Id. During the week before the scheduled
trial date, the Government filed proposed jury instructions
(Doc. No. 129), proposed voir dire (Doc. No. 130), a trial
brief (Doc. No. 131), and a proposed special verdict form
(Doc. No. 132). By Thursday, February 19, 2015, counsel
Applebaum filed: responses to the Government's in
limine requests (Doc. No. 133), proposed jury
instructions (Doc. No. 134), and a response to the
Government's proposed special verdict form (Doc. No.
the extensive pre-trial preparation briefly noted above, on
Friday, February 20, 2015, the parties were scheduled for a
final conference with the Court. Doc. No. 126. After a break
in those proceedings, and pursuant to the terms of a written
plea agreement, Defendant pleaded guilty to Count 1 of the
second superseding indictment. Doc. Nos. 138-139.
the plea hearing, Defendant responded affirmatively to the
Court's questions about the plea agreement he had just
signed, including whether Defendant: signed it before he read
it; read it carefully; read it more than once; talked with
Mr. Applebaum about the agreement; asked Mr. Applebaum
questions about the agreement and got adequate answers from
his counsel; that no one made any threats to get him to plead
guilty; and that no one had made any promises to him
“other than what might be set forth in the plea
agreement itself[.]” Plea Transcript
similarly acknowledged that he could ask questions of the
Court and counsel if he had any concerns or questions during
the plea proceeding (PT, 6-7); that he understood each of the
provisions within the plea agreement (PT, 7-18); that he
would qualify for “safety valve” treatment, but
only if he satisfied the criteria established by statute and
guideline provision (PT, 11-13); that he was facing guideline
ranges of 63-78 months or 97-121 months (PT, 13-14); that he
had enough time to talk to his defense counsel (PT, 25-26);
that his defense counsel had done a good job of representing
him (id.); and that if he pleaded guilty he could
not change his mind later (PT, 23-24).
admitted that he was guilty of Count 1. PT, 27-28. Finally,
Defendant specifically waived the right to appeal his
sentence unless the Court imposed a term of imprisonment
greater than 121 months. See Doc. No. 139, ¶
11; PT, 16-17, 24. The Court formally accepted
Defendant's guilty plea and made a special finding that
the Defendant was guilty and that he knowingly and
voluntarily entered into his guilty plea. PT, 8, 26-27.
30, 2014, Defendant appeared for sentencing. The Court
determined that the guidelines range was 78 to 97 months.
See Doc. No. 161; Sentencing Transcript
(“ST”) at 6-9. Before the hearing, the Government
argued that Defendant's failure to acknowledge his role
in Hermanos Pistoleros Latinos (“HPL”), as
described in the Presentence Investigation Report
(“PSR”), would factor into the Government's
position regarding Defendant's own acceptance of
responsibility. PSR, p. A.1-A.2. During the hearing,
Defendant's counsel confirmed that Defendant withdrew his
objection to the PSR's mention of HPL membership, in
accordance with Defendant's own prior admissions. ST,
the Government urged an 88-month disposition, Defendant's
counsel argued on Defendant's behalf. ST, 9-11. When
given the opportunity to address the Court, Defendant stated
that he “learned [his] lesson and, you know,
there's a lot of people that were affected by my
consequences and I take full responsibility.” ST, 11.
Court imposed a term of 60 months imprisonment, three years
of supervised release, and other conditions. ST, 12-13. At no
time did Defendant state or otherwise indicate he was
dissatisfied with his counsel. At no time did Defendant state
or otherwise indicate that he was not being afforded any
benefit, either as contemplated within his plea bargain or
otherwise. Defendant asked no questions and made no
statements at the June 10, 2015, hearing after the
Court's sentence was imposed. Defendant did not file an
timely filed the instant Motion on June 10, 2016.
See Doc. No. 174. In an accompanying memorandum,
see Doc. No. 175, Defendant now generally asserts
that Mr. Applebaum provided ineffective assistance during
almost all aspects of representing Mr. Castillo.
Defendant's § 2255 memorandum includes a summary
paragraph indicative of his more specific complaints,
claiming that defense counsel Applebaum:
[D]id not discharge his duty in accordance with the
requirements of the Sixth Amendment and in doing so was
deficient and in performance is oxymoronic en extremis. There
was no ‘performance' by Mr. Applebaum in the
instant offense; rather, it should be termed a
‘performance, ' that is, an orchestrated attempt to
obfuscate and conceal his own deficiencies; deficiencies
concerning lines of inquiry never explored, and issues of
great importance to his client swept aside.
Doc. No. 175 at 8.
described by the Government, Defendant insists that former
trial counsel Paul Applebaum was ineffective throughout the
majority of his representation, including deficient
performance and Constitutional failures such as: during plea
negotiations and in regards to the plea agreement itself
(id. at 9-11); regarding legal research and factual
investigation of Defendant's case (id. at 10-11,
16-18); that his counsel encouraged an involuntary plea and
promised Defendant a particular sentence and other assurances
(id. at 13-14, 18); and failed to make certain
arguments at sentencing (id. at 14-15). Defendant
goes on to demand an evidentiary hearing regarding these
claims. Id. at 19.
August 8, 2016, the Government responded to each of these
claims. Doc. No. 186. Defendant in turn submitted a
supplemental pleading on November 4, 2016. Doc. No. 189. That
pleading largely reiterates Defendant's original claims
but makes specific allegations against his former counsel and
his former counsel's affidavit, to include attaching as a
seemingly demonstrative exhibit an order in an unrelated
matter from 2011. Doc. No. 189-1.
prevail on a motion filed under § 2255, a petitioner
must show that his challenge raises a “fundamental
defect which results in a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974). Section 2255 relief is extraordinary;
consequently, it “is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if
uncorrected, would result in a complete miscarriage of
justice.” United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996). Thus, § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” Sun Bear v. United States, 644
F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting United
States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather,
it encompasses jurisdictional and constitutional errors.
Id. Beyond that, its scope is “severely
limited.” Id. “[A] miscarriage of
justice cognizable under § 2255 occurs when the sentence
is in excess of that authorized by law.” Id.
evidentiary hearing on a § 2255 motion must be granted
unless the motion, files and records of the case establish
conclusively that the petitioner is not entitled to relief.
Kingsberry v. United States, 202 F.3d 1030, 1032
(8th Cir. 2000). But “[n]o hearing is required where
the claim ‘is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is
based.'” Watson v. United States, 493 F.3d
960, 963 (8th Cir. 2007) (quoting Shaw v. United
States, 24 F.3d 1040, 1043 (8th Cir. 1994).
Defendant Has Failed to Show that His Defense Counsel Was
claims ineffective assistance because “Mr. Applebaum
failed to properly investigate and research his case.”
Doc. No. 175, 10. Continuing, Defendant suggests that
instead of conducting proper investigation, his former
counsel “seemed like” he “simply wanted him
to accept the government's agreement to plead guilty and
rushed him into pleading guilty, without knowing the exact
consequences for accepting the proposed government's plea
agreement.” Id. As part of this argument,
Defendant also claims that by “not properly
investigating [his] case, he [Applebaum] simply agreed to
everything the government stipulated in the plea agreement,
which at the end it [sic] harmed him because he had to
debrief twice in order to qualify for the ‘safety
valve.'” Id., 11. Defendant also argues
that his former ...