ESTEVEZ-FIGUEREDO v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

SAURO D. ESTEVEZ-FIGUEREDO, :

:

Petitioner, : Civ. No. 18-16430 (PGS)

:

v. :

:

UNITED STATES OF AMERICA, : OPINION

:

Respondent. :

_________________________________________ :

PETER G. SHERIDAN, U.S.D.J.

I. INTRODUCTION

Petitioner, Sauro D. Estevez-Figueredo (“Petitioner” or “Estevez-Figueredo”), is a federal

prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to

28 U.S.C. § 2255. For the following reasons, the majority of Petitioner’s § 2255 motion is denied

and a certificate of appealability shall not issue on the claims that are denied. This Court will

conduct an evidentiary hearing on one of Petitioner’s claims out of an abundance of caution.

II. BACKGROUND

On February 7, 2016, Petitioner was charged with two counts of conspiracy to distribute

narcotics. (See Crim. No. 17-186 ECF 1).1 Petitioner made his initial appearance on February 8,

2016. (See id. ECF 7). Counsel was appointed to represent Petitioner at that time. (See id.).

Starting February 16, 2016 thru April, 2017, the government and Petitioner, through his counsel,

agreed to continuances as plea negotiations were ongoing. (See id. ECF 30, 38, 43, 50, 52, 55,

58, 60). Petitioner though appealed the last pre-indictment continuance on April 6, 2017. (See id.

1 This opinion cites to the record in both Petitioner’s criminal action, Crim. No. 17-186, and this

civil action. Where this Court cites to documents in the criminal record, the criminal docket

number is cited. Where this Court cites to documents in this civil action, no civil action number

is cited.

ECF 62). That appeal was ultimately dismissed by the Third Circuit on July 28, 2017 because the

order was not final, and Petitioner failed to meet the requirements of the collateral order doctrine.

(See id. ECF 66).

On May 18, 2017, Petitioner was indicated on four counts. Count One charged Petitioner

with conspiracy to distribute and possess with intent to distribute controlled substances. Counts

Two and Three charged Petitioner with distribution and possession with intent to distribute

controlled substances. Count Four charged Petitioner with possession with intent to distribute

controlled substances. (See id. ECF 61).

On November 7, 2017, Petitioner entered a plea agreement whereby he pled guilty to

Count One of the Indictment. (See id. ECF 78). The plea agreement provided that whether

Petitioner was entitled to a minor role or safety valve sentence reduction was yet to be decided.

(See id.)

On April 17, 2018, this Court conducted a sentencing hearing. At that hearing, this Court

rejected Petitioner’s argument that the minor role reduction applied. (See id. ECF 81 at 19).

Additionally, the safety valve sentence reduction was determined not to apply as because

Petitioner did not make a safety valve proffer. (See id. at 21). Ultimately, this Court sentenced

Petitioner to 120 months imprisonment – the statutory mandatory minimum. (See id. at 27).

Petitioner did not file a direct appeal from his judgment of conviction.

In November, 2018, this Court received Petitioner’s § 2255 motion. (See ECF 1). He

raises the following ineffective assistance of counsel claims in his § 2255 motion:

1. Failure to object to pre-indictment delay (“Claim I”)

2. Agreeing to continuances without informing or advising Petitioner (“Claim II”)

3. Not visiting Petitioner enough (“Claim III”)

4. Failure to consult or discuss plea offers with Petitioner (“Claim IV”)

5. Making no effort to seek minor role or safety valve sentence reductions (“Claim V”)

6. Failing to make any objections to the Pre-Sentence Report (“PSR”) (“Claim VI”)

7. Providing no advice regarding an appeal.

Respondent filed a response in opposition to Petitioner’s § 2255 motion. Petitioner did not file a

reply. The matter is now ripe for adjudication.

III. LEGAL STANDARD

A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant

to 28 U.S.C. § 2255 entitles a prisoner to relief if “the court finds . . . [t]here has been such a

denial or infringement of the constitutional rights of the prisoner as to render judgment

vulnerable to collateral attack.” 28 U.S.C. § 2255(b). “In considering a motion to vacate a

defendant’s sentence, ‘the court must accept the truth of the movant’s factual allegations unless

they are clearly frivolous based on the existing record.’” United States v. Booth, 432 F.3d 542,

545 (3d Cir. 2005) (quoting Gov’t of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989))

(citing R. Governing § 2255 Cases R. 4(b)). A District Court “is required to hold an evidentiary

hearing ‘unless the motion and files and records of the case show conclusively that the movant is

not entitled to relief.’” Id. (quoting Forte, 865 F.2d at 62). The Third Circuit has stated that this

standard creates a “‘reasonably low threshold for habeas petitioners to meet.’” Id. (quoting

United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267

F.3d 966, 973 (9th Cir. 2001))). Accordingly, this Court abuses its discretion “if it fails to hold

an evidentiary hearing when the files and records of the case are inconclusive as to whether the

movant is entitled to relief.” Id. (citing McCoy, 410 F.3d at 134).

IV. DISCUSSION

As indicated above, all of Petitioner’s claims assert that his counsel was ineffective. The

Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466

U.S. 668 (1984), the Supreme Court articulated the two-prong test for demonstrating when

counsel is deemed ineffective. First, the petitioner must show that considering all the

circumstances, counsel’s performance fell below an objective standard of reasonableness. See id.

at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary to

analyze an ineffectiveness claim considering all circumstances) (citation omitted). A petitioner

must identify the acts or omissions that are alleged not to have been the result of reasonable

professional judgment. See Strickland, 466 U.S. at 690. Under this first prong of the Strickland

test, scrutiny of counsel’s conduct must be “highly deferential.” See id. at 689. Indeed,

“[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. The reviewing court

must make every effort to “eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689. If counsel makes “a thorough investigation of law and facts”

about his plausible options, the strategic choices he makes accordingly are “virtually

unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)

(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy

after a less than complete investigation, his choices are considered reasonable “to the extent that

reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,

445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).

The second prong of the Strickland test requires the petitioner to affirmatively prove prejudice.

See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694. A reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d

Cir. 2012). “This does not require that counsel’s actions more likely than not altered the

outcome, but the difference between Strickland’s prejudice standard and a more-probable-than-

not standard is slight and matters only in the rarest case. The likelihood of a different result must

be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal

quotation marks and citations omitted). “In the context of pleas a [petitioner] must show the

outcome of the plea process would have been different with competent advice.” Lafler v.

Cooper, 566 U.S. 156, 163 (2012) (citations omitted). “[W]hen evaluating the petitioner's claim

that ineffective assistance led to the improvident acceptance of a guilty plea, [the petitioner is

required] to show that there is a reasonable probability that, but for counsel's errors, [the

petitioner] would not have pleaded guilty and would have insisted on going to trial.” Id.

(citations omitted). In the context of sentencing, prejudice requires a reasonable probability that,

but for counsel’s error, the result of the sentencing proceeding would have been different - i.e.,

more favorable to the defendant. See United States v. Polk, 577 F.3d 515, 520 (3d Cir. 2009); see

also United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (“The prejudice prong is satisfied

when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing[.]”)

(internal quotation marks and citations omitted).

“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court

need not determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies…. If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be

followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at

697).

As detailed in more depth below, Petitioner makes no contention in his § 2255 motion

that he would not have pled guilty and would have insisted on going to trial had counsel

purportedly performed competently. Thus, he fails to show the requisite prejudice on many of his

claims at the outset. See generally Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Grippo v.

United States, No. 14-4577, 2016 WL 7223316, at *7 (D.N.J. Dec. 12, 2016) (finding petitioner

failed to show prejudice where he does not contend he would have not pled guilty and would

have insisted on going to trial if competently advised by counsel); Matusiewicz v. United States,

No. 11-0394, 2014 WL 3362365, at *6 (D. Del. July 2, 2014) (petitioner fails to show prejudice

on claim that counsel failed to negotiate a more favorable plea where he does not assert that he

would not have pled guilty and would have proceeded to trial but for counsel’s conduct) (citing

United States v. Jones, No. 12-2046, 2014 WL 2587008, at *6 (E.D. Pa. June 10, 2014)).

A. Claim I

In Claim I, Petitioner states that counsel was ineffective when he failed to object to the

fifteen-month delay between his arrest in February, 2016 and the indictment which was entered

in May, 2017. He asserts that due to the stress and anxiety, he gained weight and that his blood

pressure and cholesterol levels increased. (See ECF 1 at 5-6). While not completely clear,

presumably Petitioner is arguing that counsel should have argued that the indictment should have

been dismissed because his due process rights were violated due to the fifteen-month delay

between his arrest and being indicted.

“[T]he Due Process Clause of the Fifth Amendment protects

defendants against oppressive pre-indictment delay within the

applicable limitations period.” United States v. Sebetich, 776 F.2d

412, 430 (3d Cir.1985). To prevail on a claim of unconstitutional

pre-indictment delay, the defendant must prove that (1) “the

government intentionally delayed bringing the indictment in order

to gain some advantage over him” and (2) “this intentional delay

caused the defendant actual prejudice.” United States v. Ismaili,

828 F.2d 153, 167 (3d Cir.1987).

United States v. Staton, 605 F. App'x 110, 113 (3d Cir. 2015).

Petitioner fails to show that he is entitled to relief on this ineffective assistance of counsel

claim. He makes no argument whatsoever that the government delay in bringing the indictment

was to gain some advantage over him. Rather, it appears as if the indictment was delayed due to

continuances so that the parties could at least in part continue to converse about a possible plea

agreement. Accordingly, Petitioner fails to show that he was prejudiced under Strickland by

counsel’s failure to bring a motion to dismiss due to pre-indictment delay because he has not

shown, let alone allege, intentional delay on the part of the government. Accordingly, Claim I is

denied.2

B. Claim II

Somewhat related to Claim I, Petitioner alleges in Claim II that counsel did not inform

him, nor did he agree to the several post-arrest continuances consented to by the government and

Petitioner’s counsel. This purportedly includes the period after Petitioner was indicted. Petitioner

though fails to show Strickland prejudice with respect to this claim. Indeed, he fails to show that

the outcome of his proceeding would have been different to a reasonable probability had counsel

not agreed to these continuances. Furthermore, as noted above, with respect to his guilty plea,

2 Because Petitioner failed to allege and show intentional delay on the part of the government in

bringing the indictment, this Court need not analyze whether Petitioner’s allegations of his

deteriorating health due to stress and anxiety constitutes actual prejudice to satisfy a Fifth

Amendment due process claim due to pre-indictment delay.

Petitioner fails to even allege that he would not have pled guilty and would have insisted on

going to trial but for counsel’s purported ineffectiveness in agreeing to these continuances.

Accordingly, Claim II is also denied.

C. Claim III

In Claim III, Petitioner states that counsel only visited him when he came to visit other

inmates and did not spend any time with Petitioner discussing his case or what his legal options

were. For the following reasons, Petitioner fails to show that he is entitled to relief pursuant to

Srickland on this claim.

As the Supreme Court has explained,

the representations of the defendant, his lawyer, and the prosecutor

at [a plea] hearing, as well as any findings made by the judge

accepting the plea, constitute a formidable barrier in any

subsequent collateral proceedings. Solemn declarations in open

court carry a strong presumption of verity. The subsequent

presentation of conclusory allegations unsupported by specifics is

subject to summary dismissal, as are contentions that in the face of

the record are wholly incredible....

... [T]he barrier of the plea or sentencing proceeding record,

although imposing, is not invariably insurmountable [however]. In

administering the writ of habeas corpus and its § 2255 counterpart,

the federal courts cannot fairly adopt a per se rule excluding all

possibility that a defendant's representations at the time his guilty

plea was accepted were so much the product of such factors as

misunderstanding, duress, or misrepresentation by others as to

make the guilty plea a constitutionally inadequate basis for

imprisonment.

Blackledge v. Allison, 431 U.S. 63, 73–75 (1977); see also United States v. Erwin, 765 F.3d 219,

230 (3d Cir. 2014) (applying Blackledge); United States v. Stewart, 977 F.2d 81, 84 (3d Cir.

1992) (“The ritual of the colloquy is but a means toward determining whether the plea was

voluntary and knowing. A transcript showing full compliance with the customary inquiries and

admonitions furnishes strong, although not necessarily conclusive, evidence that the accused

entered his plea without coercion and with an appreciation of its consequences”)

Petitioner’s assertion in his § 2255 motion that counsel did not adequately explain his

options or advise him how the criminal justice system worked is contradicted by what he told

this Court during the plea hearing. Indeed, Petitioner testified then that he had enough time to

discuss his case with his counsel. (See ECF 5-2 at 5). Furthermore, Petitioner also testified that

counsel had explained to him the immigration consequences of his plea. (See id. at 13). Petitioner

also testified that counsel had reviewed the plea agreement and its terms with him and that he

had no questions about it. (See id. at 18). His conclusory statement now that counsel did not

explain his options or advise him how the criminal justice system worked is insufficient to

overcome Blackledge’s presumption based on Petitioner’s solemn declarations in open court

during the plea hearing. See Grippo, 2016 WL 7223316, at *9 (conclusory allegation attorney

did not explain strength and weaknesses of plea agreement insufficient to overcome strong

Blackledge presumption based on solemn on the record admission by petitioner). Accordingly,

Petitioner fails to show that counsel’s actions fell below an objective standard of reasonableness

within this claim.

Furthermore, Petitioner fails to show Strickland prejudice. He does not show how the

outcome of his proceedings would have been different had counsel visited him more while he

was incarcerated. Additionally, to the extent that Petitioner may be alleging the purported lack of

advice by counsel rendered his plea involuntary, he does not even allege that he would have not

pled guilty and would have insisted on going to trial but for counsel’s purported ineffectiveness.

Accordingly, for these reasons, Claim III is denied.

D. Claim IV

In Claim IV, Petitioner asserts that his counsel was ineffective during the plea negotiation

process. More specifically, Petitioner states that counsel never discussed any pleas with him nor

did he give him any advice about the positives or negatives of a plea. (See ECF 1 at 6-7).

Seeming to then contradict his own argument as stated above, Petitioner then states that counsel

told him about a 97-108 month plea along with an 83-month plea. Finally, Petitioner states that

counsel even suggested at one point that Petitioner might only get a 63-78 month sentence. (See

id. at 7). Petitioner states though that counsel never gave him any advice on how to proceed with

these pleas.

The United States Supreme Court has held that “defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on terms and conditions that

may be favorable to the accused.” See Missouri v. Frye, 566 U.S. 134, 145 (2012). “[T]he fact of

a formal offer means that its terms and its processing can be documented so that what took place

during the negotiation process becomes more clear if some later inquiry turns on the conduct of

earlier pretrial negotiations.” Id. at 146. Accordingly, deficient performance occurs when counsel

fails to communicate formal plea offers to the defendant. See id. at 146-47. Once that is satisfied,

a petitioner still must show prejudice. In Frye, the Supreme Court noted that:

To show prejudice from ineffective assistance of counsel where a

plea offer has lapsed or been rejected because of counsel’s

deficient performance, defendants must demonstrate a reasonable

probability they would have accepted the earlier plea offer had

they been afforded effective assistance of counsel. Defendants

must also demonstrate a reasonable probability the plea would

have been entered without the prosecution canceling it or the trial

court refusing to accept it, if they had the authority to exercise that

discretion under state law. To establish prejudice in this instance, it

is necessary to show a reasonable probability that the end result of

the criminal process would have been more favorable by reason of

a plea to a lesser charge or a sentence of less prison time.

Frye, 566 U.S. at 147 (citing Glover v. United States, 531 U.S. 198, 203 (2001). As one court has

noted:

A petitioner ... who seeks to establish a claim of ineffective

assistance of counsel in the context of plea bargaining,

consequently must make a double showing – (1) that the

prosecutor extended the plea offer and (2) that his or her attorney

either failed to communicate the offer to him or misadvised him

concerning the advantages and disadvantages of the offer so as to

cause the non-acceptance of an otherwise beneficial outcome by a

favorable guilty plea.

Compean v. United States, No. 12-0730, 2013 WL 6196517, at *7 (W.D. Ky. Oct. 18, 2013)

(citing Lint v. Prelesnik, No. 09-10044, 2011 WL 3241840, at *11 (E.D. Mich. July 29, 2011);

Robinson v. United States, 744 F. Supp. 2d 684, 696 (E.D. Mich. 2010)); report and

recommendation adopted by, 2013 WL 6196533 (W.D. Ky. Nov. 26, 2013). Thus, whether a

defendant is ever offered a formal plea offer is a vital factor in determining whether counsel is

deemed to be ineffective because mere informal plea discussions are not enough to trigger

counsel’s duty to inform. See Shnewer v. United States, No. 13-3769, 2016 WL 867461, at *15

(D.N.J. Mar. 7, 2016) (citing Hull v. United States, No. 15-0123, 2015 WL 5009998, at *2 (W.D.

Wis. Aug. 15, 2015)) (“The Court made clear in Frye, that duty applies only when the plea offer

is a ‘formal one.’ The Court has never held that defense counsel can be found constitutionally

ineffective for failing to tell their clients about informal discussions they have with the

government about possible plea offers.”); Mavashev v. United States, No. 11-3724, 2015 WL

1508313, at *9 (E.D.N.Y. Mar. 31, 2015) (noting that there is a significant distinction between

formal plea offers and informal plea offers); United States v. McCall, No. 00-0505, 2014 WL

2581353, at *3 (N.D. Cal. June 9, 2014) (“In reality, there is either a formal plea offer, or in its

absence, mere discussions between counsel. Mere conversations are rarely recorded and always

subject to interpretation and mis-remembering. It would be a near-impossible burden to require

defense counsel to update defendant on each twist and turn in informal conversations. And it

would be impossible for the government to reconstruct and prove each such twist and turn in the

communication, much less prove that defense counsel passed on the twists and turns to their

client.... Therefore, to transmogrify mere conversation into an “informal plea offer” and then to

further say it must be communicated to an accused on pain of Section 2255 relief would be a

nifty sleight of hand.”) (citations omitted); United States v. Merlino, Crim. No. 99-10098, 2014

WL 793987, at *4 (D. Mass. Feb. 28, 2014) (“A majority of courts ... have held that a formal

plea offer must consist of something more than preliminary oral communications.”) (citations

omitted); Montgomery v. United States, No. Crim. 07-00036, 2013 WL 6196554, at *4 (W.D.

Ky. Nov. 26, 2013) (“Although there has been little exposition regarding the precise definition of

the term “formal offer,” the Court clearly intended to distinguish “offers” made during the course

of preliminary negotiations from those made once negotiations have concluded. In other words,

while there is no touchstone for assessing the formality of an offer, there must at the very least be

some basis for concluding that the alleged offer could have been accepted or rejected without

further discussion or negotiation.”); Compean, 2013 WL 6196517, at *7 (“The threshold issue

for the Court therefor is whether the Government ever extended a formal plea offer to the

Defendant in the first instance.”) (citing Guerrero v. United States, 383 F.3d 409, 417 (6th Cir.

2004); Strollo v. United States, No. 05-0113, 2007 WL 2071940, at *3 (N.D. Ohio July 16,

2007))).

Courts tend to look at several factors to determine whether the prosecutor extended a

formal plea offer. Indeed:

One court has noted that plea agreements “are essentially

contracts” and that “for a contractual offer to exist, it must contain

‘sufficiently definite terms to enable [a] fact finder to interpret and

apply them.” United States v. Petters, 986 F. Supp. 2d 1077, 1082

(D. Minn. 2013) (quoting Neb. Beef, Ltd. v. Wells Fargo Bus.

Credit, Inc., 470 F.3d 1249, 1251 (8th Cir. 2006)). Thus, in

Petters, the District of Minnesota determined that a formal plea

offer had not been extended because there was “an absence of any

discussion of the charges to which Petters would acknowledge

guilt, the factual basis for a plea, or restitution or forfeiture issues.”

Id. A court in this Circuit has similarly stated that, “it is clear that

an oral discussion of the sentencing range for a possible plea

agreement that does not include an agreement on the charges to

which the defendant will plead guilty and the facts that he will

admit, does not constitute a formal plea offer.” Waters, 2013 WL

3949092, at *8 (citing Enright v. United States, 347 F. Supp. 2d

159, 165 (D.N.J. 2004)).

Shnewer, 2016 WL 867461, at *16. In Shnewer, Judge Kugler determined that the petitioner

failed to show that a formal plea offer had been made because of a lack of a discussion regarding

the charges to which the defendant would have pled guilty to along with a factual basis for the

plea. See id.

In this case, Petitioner fails to show that any formal offers were offered to him besides

the one he ultimately agreed to. Petitioner does not allege that any of the purported pleas

discussed to him by counsel had any discussion of what charge Petitioner would have to pled

guilty to. Rather, they appear to consist only of informal discussions, which, based on

Petitioner’s own admissions in his filing, he indicates counsel told him about. Thus, to the extent

that this claim could be read as counsel’s failure to inform Petitioner about plea offers, the claim

is conclusory and lacks merit.

Construed liberally, Petitioner may also be asserting that counsel failed to advise him

about the formal plea agreement he was offered. However, this claim is belied by the record in

this case. Indeed, during the plea hearing Petitioner stated as follows: (1) he had sufficient time

to discuss the case with his attorney (see ECF 5-2 at 6); (2) counsel consulted him about the

immigration consequences of his plea (see id. at 12-13); (3) counsel reviewed the plea agreement

with Petitioner (see id. at 18); and (4) Petitioner had no questions about the plea agreement. (See

id. at 18). Petitioner offers no compelling reason for this Court to question the truthfulness of his

statements under oath during the plea hearing. Accordingly, to the extent Petitioner argues within

Claim IV that counsel failed to adequately advise him on the plea agreement, the claim is

without merit.

Therefore, for the foregoing reasons, Claim IV is denied.

E. Claim V

In Claim V, Petitioner first claims that counsel was ineffective for failing to pursue a

minor role reduction. As the sentencing hearing transcript makes clear, however, counsel

strenuously argued for a minor role reduction in Petitioner’s sentence. (See ECF 5-2 at 3-19).

Thus, counsel was not ineffective because he in fact did argue for such a minor role sentence

reduction.

Petitioner also argues within Claim V that counsel was ineffective because he did not

discuss the safety valve sentence reduction with him. (See ECF 1 at 7). Petitioner states that had

counsel done so, Petitioner would have discussed the details of his case with the government.

Thus, according to Petitioner, he could have gotten the benefit of the safety valve, thereby

qualifying him for a sentence below the statutory mandatory minimum 120-month sentence he

received from this Court.

The safety valve sentence reduction from the United States Sentencing Guidelines

(“U.S.S.G.”) states as follows:

Except as provided in subsection (b), in the case of an offense

under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court

shall impose a sentence in accordance with the applicable

guidelines without regard to any statutory minimum sentence, if

the court finds that the defendant meets the criteria in 18 U.S.C. §

3553(f)(1)-(5) set forth below:

(1) the defendant does not have more than 1

criminal history point, as determined under the

sentencing guidelines before application of

subsection (b) of § 4A1.3 (Departures Based on

Inadequacy of Criminal History Category);

(2) the defendant did not use violence or credible

threats of violence or possess a firearm or other

dangerous weapon (or induce another participant to

do so) in connection with the offense;

(3) the offense did not result in death or serious

bodily injury to any person;

(4) the defendant was not an organizer, leader,

manager, or supervisor of others in the offense, as

determined under the sentencing guidelines and was

not engaged in a continuing criminal enterprise, as

defined in 21 U.S.C. § 848; and

(5) not later than the time of the sentencing hearing,

the defendant has truthfully provided to the

Government all information and evidence the

defendant has concerning the offense or offenses

that were part of the same course of conduct or of a

common scheme or plan, but the fact that the

defendant has no relevant or useful other

information to provide or that the Government is

already aware of the information shall not preclude

a determination by the court that the defendant has

complied with this requirement.

U.S.S.G. § 5C1.2(a). To qualify for a safety valve reduction, a petitioner is required to “not only

... admit the conduct charged, but [ ] also ... volunteer any information aside from the conduct

comprising the elements of the offense.” United States v. Ishmael, 469 F. App'x 86, 88 (3d Cir.

2012). Thus, Petitioner was required, in order to be eligible for safety valve sentencing, to

“reveal a broad scope of information about the relevant criminal conduct to the authorities.” Id.;

see also United States v. Claxton, 766 F.3d 280, 305 (3d Cir. 2014).

This Court did not consider the safety valve reduction as it was uncontested during the

sentencing hearing that Petitioner never made a proffer to the government, thus did not satisfy

U.S.S.G. § 5C1.2(a)(5). Nevertheless, Petitioner states that he would have made a proffer to the

government had he been so advised by counsel.

The issue of whether Petitioner would be entitled to a safety valve sentence reduction was

left open in the plea agreement. Most notably, it was not determined whether Petitioner satisfied

the first and fifth elements to warrant applying the safety valve. (See Crim. No. 17-186 ECF 78

at 9). Petitioner admitted though during the plea hearing that he reviewed the plea agreement

with his attorney and that he had no questions about it. (See ECF 5-2 at 18). Furthermore,

Petitioner’s counsel provided this Court with what he states are contemporaneous notes made

prior to sentencing which he states illustrates that he spoke to Petitioner about the safety valve.

Indeed, one of these notes explicitly states that counsel explained to Petitioner about the safety

valve (again) but that Petitioner was not interested in meeting with the government. (See ECF 5-

4 at 21).

Petitioner’s admissions during the plea hearing that counsel explained to him the plea

agreement, as well as counsel’s contemporaneous notes are certainly relevant pieces of evidence

to show that Petitioner was in fact told about the safety valve by counsel, notwithstanding

Petitioner’s statements to the contrary in his § 2255 motion. Nonetheless, and out of an extreme

abundance of caution, given that the credibility of Petitioner versus his former counsel may

impact the outcome of this claim, this Court will an evidentiary hearing on whether counsel was

ineffective by failing to discuss the safety valve with Petitioner.3 Counsel will be appointed to

represent Petitioner at the evidentiary hearing on this claim.

3 The PSR indicates that had the safety valve been applied, Petitioner’s offense level would have

been 31. (See PSR ¶ 56.13b). This would have made his advisory guideline range 108-135

months. Accordingly, this Court cannot decide this claim on Strickland’s prejudice prong at this

time because the bottom of the range is below the 120-month statutory minimum sentence. See,

e.g., United States v. Batista, 483 F.3d 193, 199 n.4 (3d Cir. 2009) (noting for safety valve to

apply, advisory guideline range must be lower than the statutory minimum).

F. Claim VI

In Claim VI, Petitioner argues counsel was ineffective when he failed to make any

objections to the PSR. Motions under § 2255 must allege sufficient factual detail to ground their

claims. See, e.g., United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); United States v.

Dawson, 857 F.2d 923, 928 (3d Cir. 1988) (holding that a claim without any elaboration was

insufficient to create a genuine issue for review under § 2255). A movant “cannot meet his

burden to show that counsel made errors so serious that his representation fell below an objective

standard of reasonableness based on vague and conclusory allegations.” Zettlemoyer v.

Fulcomer, 923 F.2d 284 298 (3d Cir. 1991). A court may dispose of “vague and conclusory

allegations contained in a § 2255 [motion] ...without further investigation.” Thomas, 221 F.3d at

437 (citation omitted).

Petitioner’s allegations within Claim VI are vague and conclusory. He provides no

specificity whatsoever as to what type(s) of objection(s) counsel should have made to the PSR.

Accordingly, Claim VI is denied.

G. Claim VII

In Claim VII, Petitioner states that counsel gave him no advice regarding a possible

appeal. (See ECF 1 at 7). Thereafter, he states though that counsel told him not to appeal because

it would be denied. (See id.).

“Counsel has a constitutionally imposed duty to consult with the defendant about an

appeal when there is reason to think either (1) that a rational defendant would want to appeal (for

example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.” Roe v. Flores–Ortega,

528 U.S. 470, 480 (2000). In reviewing the failure to file an appeal, the court should consider

“whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the

scope of potentially appealable issues and because such a plea may indicate that the defendant

seeks an end to judicial proceedings....” Id.

At the outset, it should be noted that this is not a case where Petitioner is arguing that he

told counsel to file an appeal, but counsel failed to do so. Rather, Petitioner’s claim is that

counsel should have provided more “advice” about whether to appeal. However, what “advice”

Petitioner claims he should have received is lacking such that this claim appears to be vague and

conclusory warranting dismissal. Furthermore, Petitioner’s own admissions in his § 2255 motion

indicate that counsel did provide Petitioner advice about an appeal as Petitioner states counsel

recommended against filing an appeal.

The sentencing hearing transcript lends further support in denying this claim. Indeed,

Petitioner did not object when counsel told this Court that he had discussed Petitioner’s right to

appeal with him. (See ECF 5-3 at 29). Finally, it bears repeating that this Court sentenced

Petitioner to the 120-month mandatory minimum, below the advisory guidelines range of 138 to

165 months. Petitioner’s § 2255 motion is unclear what claims he would have filed had he

brought a direct appeal. Thus, at least with respect to the sentence Petitioner received, Petitioner

provides no argument that this sentence was in error. Accordingly, for these reasons, Claim VII

is denied.

V. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability (“COA”), an appeal may not be taken from a final order in a proceeding under 28

U.S.C. § 2255. A certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with the district

court's resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003).

Petitioner has not met the standard for a COA on Claims I, II, III, IV, VI and VI as well

as his argument within Claim V that counsel was ineffective for failing to argue that Petitioner

was entitled to a minor role sentencing reduction. This Court reserves judgment on whether

Petitioner is entitled to a COA on his argument within Claim V that counsel was ineffective for

failing to advise Petitioner on the safety valve sentence reduction.

VI. CONCLUSION

For the foregoing reasons, Claims I, II, III, IV, VI and VII as well as Petitioner’s

argument within Claim V that counsel was ineffective for failing to argue for a minor role

sentencing reduction are denied. A COA shall not issue on these claims. This Court will conduct

an evidentiary hearing on Petitioner’s argument within Claim V that counsel was ineffective in

failing to advise Petitioner about the safety valve sentencing reduction. Counsel will be

appointed to represent Petitioner at the evidentiary hearing on this claim. An appropriate order

will be entered.

s/Peter G. Sheridan

PETER G. SHERIDAN, U.S.D.J.

June 18, 2020