United States v. Penaloza-Romero

          Allen A. Slaughter, Jr., United States Attorney for Plaintiff.

          Eduardo Penaloza-Romero, Pro Se.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Eduardo Penaloza-Romero's Pro Se Motion to Vacate, Set Aside, or Correct the Sentence Imposed Pursuant to 28 U.S.C. § 2255 [Doc. No. 613]. Based on a review of the file, record and proceedings therein, and for the reasons set forth below, the Court denies Defendant's motion.

         I. Background

         On September 23, 2014, Defendant was charged with one count of conspiracy to distribute methamphetamine and marijuana in violation of 21 U.S.C. §841(a)(1) and four counts of distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B). (Superseding Indictment at 1-10 [Doc. No. 15].)

         On August 26, 2015, Defendant pled guilty to a single count of conspiracy to distribute methamphetamine and marijuana with the Government pursuant to a plea agreement (the “Plea Agreement”). (See Aug. 26, 2015 Min. Entry [Doc. No. 311].) In the Plea Agreement, Defendant admitted that, from at least November 2013 through at least August 2014, he conspired with others to distribute methamphetamine and marijuana. (Plea Agreement [Doc. No. 314] at 2.) Specifically, Defendant agreed that he voluntarily and intentionally joined an agreement or understanding with others known and unknown to distribute methamphetamine or other controlled substances. (Id.) Also pursuant to the Plea Agreement, Defendant waived his right to file pretrial motions, and recognized that the offense in Count 1, the conspiracy count, carried the statutory maximum penalty of life imprisonment and a mandatory-minimum term of not less than 10 years' imprisonment. (Id. at 4.)

         At the hearing on his change of plea, Defendant testified under oath that he was satisfied with the representation of his legal counsel, Mr. Robert Paule, and he had sufficient time to discuss the charges against him, the terms of the Plea Agreement, and his decision to plead guilty. (Aug. 26, 2015 Hr'g Tr. [Doc. No. 583] at 6:12-14.)

         Three times, in response to questions from the Court and counsel for the Government, Defendant specifically expressed his understanding that pursuant to the Plea Agreement, he waived any right to appeal his sentence, unless his sentence was greater than 327 months imprisonment. (Id. at 12:11-16, 27: 4-9, 37:3-8.) Defendant engaged in colloquy with the Court on this subject:

Court: Okay. Now, ordinarily the parties retain their rights to appeal. But here, both sides have waived certain rights. So, in your case, you've agreed that you give up the right to appeal your sentence unless the term of imprisonment I impose is greater than 327 months. Do you understand that?

Defendant: I do understand.

(Id. at 37:3-8.)

         In January 2017, this Court sentenced Defendant to a prison term of 196 months. (Sentencing J. at 2 [Doc. No. 569].) Defendant filed an appeal with the Eighth Circuit Court of Appeals. (See Def.'s Pro Se Notice of Appeal [Doc. No. 572].) Mr. Paule filed a brief in support of Defendant's appeal. (See Gov't Resp. in Opp. [Doc. No. 632], Ex. 4.) The Eighth Circuit dismissed the appeal, citing Defendant's waiver of appeal. United States v. Penaloza-Romero, No. 17-1159, at 2-4 (8th Cir. Feb. 9, 2018).

         Defendant then filed this pro se § 2255 motion in December 2017, seeking to vacate, set aside, and correct his sentence. He argues that his plea was involuntary and unknowing and that he received ineffective assistance of counsel stemming from: (1) counsel's failure to object to the three-level and two-level enhancement for an aggravating role; (2) counsel's failure to object to the two-level firearm enhancement under 18 U.S.C. § 924(c); (3) counsel's failure to file an appeal to the Eighth Circuit; and (4) counsel's failure to properly brief certain suppression motions. (See Def.'s Mem. in Supp. of § 2255 Mot. (“Def.'s Mem.”) [Doc. No. 614].)

         Defendant also filed a motion to amend his original § 2255 motion both on October 26, 2018 and November 19, 2018 and the Court granted both motions. In his October amendment, Defendant argues that he received ineffective assistance of counsel due to his counsel's failure to properly argue the safety valve provision under 18 U.S.C. § 3553(f). (Def.'s First Mot. for Leave to Amend Original § 2255 Mot. (“Def.'s First Mot.”) [Doc. No. 648].) In his November amendment, Defendant argues that he received ineffective assistance of counsel due to his counsel's failure to argue the defenses of “sentencing entrapment” and “sentencing manipulation.” (Def.'s Second Mot. for Leave to Amend Original § 2255 Mot. (“Def.'s Second Mot.”) at 3-7 [Doc. No. 654].)

         II. Discussion

         A. Legal Standard

         Under § 2255,

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). This relief is only available in limited circumstances and 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.” Walking Eagle v. United States, 742 F.3d 1079, 1081- 82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). Petitioner bears the burden of proof as to each ground for relief. Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969).

         In order to obtain relief for ineffective assistance of counsel, Defendant must establish both that his counsel's performance “fell below an objective standard of reasonableness” and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 688 (1984). Defendant bears the burden of establishing to a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Id. In a case involving a plea agreement, this requires a showing that “‘there [was] a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.'” York v. Lockhart, 856 F.2d 61, 63 (8th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

         This is a “heavy burden, ” United States v. Apfel, 97 F.3d at 1076, requiring a defendant to show that the deficiency in counsel's performance was “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A defendant must show that counsel's errors were not the result of “reasonable professional judgment.” Id. at 690. Moreover, a court's review of counsel's performance is highly deferential, and there ...