United States District Court, D. Minnesota
A. Slaughter, Jr., United States Attorne for Plaintiff.
Eduardo Penaloza-Romero, Pro Se.
AMENDED MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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.
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].)
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.)
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.)
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.)
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,
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].)
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.
[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
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).
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)).
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 ...