Aguilera v. United States of AmericaSee Order at [3] when Petitioner files amended brief to set response and reply deadlines

Filing 14

ORDER: Denying 2 Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR08-4095) as to Petitioner Jorge Osbaldo Aguilera: A certificate of appealability shall Issue. Signed by Senior Judge Donald E OBrien on 01/24/14. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

JORGE OSBALDO AGUILERA,
Petitioner,

No. 12-CV-4099-DEO

v.
UNITED STATES OF AMERICA,

ORDER

Respondent.

_______________
I.

INTRODUCTION
This matter is before the Court on Petitioner, Jorge

Osbaldo Aguilera’s [hereinafter Mr. Aguilera], 28 U.S.C. §
2255 Petition, Docket No. 1, Att. 2. The parties appeared for
hearing on October 21, 2013.

After listening to the parties’

arguments, the Court took the matter under consideration and
now enters the following.
II.

FACTUAL AND PROCEDURAL BACKGROUND
On

December

17,

2008,

the

grand

jury

returned

an

indictment against Mr. Aguilera on a variety of charges
related to the distribution of methamphetamine.

On February

19, 2009, a superseding indictment was filed based on the same

allegations.
2009,

a

See 08-CR-4095-DEO,1 Docket No. 33.

jury

convicted

Mr.

Aguilera

of

On June 19,

conspiracy

to

distribute 50 grams or more of methamphetamine. The jury also
found

Mr.

Aguilera

guilty

of

possession

with

distribute 50 grams or more of methamphetamine.

intent

to

See 08-CR-

4095-DEO, Docket No. 80.
Mr. Aguilera appealed the conviction.

The 8th Circuit

Court of Appeals set out the relevant factual background
regarding Mr. Aguilera’s case:
On December 5, 2008, law enforcement agents
arranged
a
controlled
purchase
of
methamphetamine from Luis Mata-Gutierrez.
Mata-Gutierrez agreed to deliver four
ounces of methamphetamine to a confidential
informant in Le Mars, Iowa. At Aguilera's
trial, Mata-Gutierrez testified that he was
in Omaha, Nebraska, with Aguilera and
Alfonso Saldana when the confidential
informant
called
him
requesting
methamphetamine. Mata-Gutierrez explained
that Saldana supplied him with drugs to
sell, and that Aguilera helped Saldana
distribute drugs. He also testified that
after the informant placed the order,
Saldana retrieved the methamphetamine and
Aguilera hid the drugs in a blue GMC Yukon,
which was borrowed from Saldana. Aguilera
and Mata-Gutierrez then left for Le Mars.
1

United States v. Luis Ismael Mata-Gutierrez and Jorge
Osbaldo Aguilera, a/k/a Victor Alonso Saldana-Lara, 08-CR4095-DEO.
2

Law enforcement agents recorded a telephone
conversation between Mata-Gutierrez and the
confidential informant while Aguilera and
Mata-Gutierrez were en route to Le Mars.
In
this
conversation,
Mata-Gutierrez
described his location to the confidential
informant, and the informant provided
directions to his residence. Knowing that
Mata-Gutierrez had used a blue GMC Yukon in
the past, law enforcement agents began to
search for the vehicle. Iowa State Trooper
Jeremy Probasco eventually observed the
Yukon, which was driven by Aguilera, and
stopped it for not having license plates.
Aguilera was arrested for driving without
a valid license, and a search of the
vehicle
uncovered
111.38
grams
of
methamphetamine.
In a superseding indictment, Aguilera and
Mata-Gutierrez were charged with conspiring
to distribute 50 grams or more of
methamphetamine, and possession with intent
to distribute 50 grams or more of
methamphetamine. Mata-Gutierrez was also
charged with two additional counts of
possession with intent to distribute
methamphetamine.
Mata-Gutierrez pleaded
guilty to all four counts, but Aguilera's
case went to trial, and Mata-Gutierrez
testified against him.
At trial, Aguilera moved to suppress the
evidence obtained in the search of the
Yukon, but the district court denied his
motion. The case was then submitted to the
jury, and after deliberating for less than
thirty minutes, the jury returned a guilty
verdict on both counts of the indictment.
Aguilera filed a motion for a new trial

3

pursuant to Federal Rule of Criminal
Procedure 33, and the district court denied
the motion.
Before sentencing, Aguilera provided a
“safety-valve statement” to the government.
This statement was designed to satisfy the
requirement of 18 U.S.C. § 3553(f)(5) and
USSG § 5C1.2(a)(5) that a defendant must
have “truthfully provided to the Government
all information and evidence the defendant
has concerning the offense or offenses of
conviction that were part of the same
course of conduct or of a common scheme or
plan.”
In his statement, Aguilera
asserted that he was not involved in using
or distributing drugs, and claimed that
“[w]hen we were stopped by law enforcement,
I did not know there were drugs in the
Yukon.”
He also explained that on
December 5, 2008, Mata-Gutierrez had asked
him for a ride to George, Iowa, so that
Mata-Gutierrez could pay rent.
The
district court heard arguments from the
parties
on
whether
the
safety-valve
provisions of 18 U.S.C. § 3553(f) and USSG
§ 5C1.2 applied to Aguilera, but denied
relief. The district court then sentenced
Aguilera to 120 months' imprisonment.
United States v. Aguilera, 625 F.3d 482, 484-85 (8th Cir.
2010).
As noted above, following his conviction, Mr. Aguilera
appealed his case to the 8th Circuit Court of Appeals.

Mr.

Aguilera made three arguments to the 8th Circuit Court of
Appeals:

1) probable cause did not exist to support a search
4

of his vehicle; 2) this Court should have granted a new trial;
and 3) he was entitled to safety-valve relief.
F.3d

at

485.

The

8th

conviction and sentence.

Circuit

affirmed

Aguilera, 625

Mr.

Aguilera’s

Regarding the search issue, the 8th

Circuit stated:
[b]ased on the information obtained during
the investigation of Mata-Gutierrez, law
enforcement officers were instructed to
watch for Mata-Gutierrez's gold-colored
Jeep or a blue GMC Yukon.
Once Trooper
Probasco observed the Yukon on the route to
the informant's residence, and verified
that Mata-Gutierrez was a passenger in the
vehicle, he had probable cause to believe
that
the
vehicle
contained
the
methamphetamine that was scheduled for
delivery. Accordingly, the district court
did not err in concluding that the
trooper's
warrantless
search
was
permissible under the automobile exception,
and we need not consider whether the search
of the vehicle was a valid search incident
to arrest.
Aguilera, 625 F.3d at 486.

On the new trial issue, the 8th

Circuit stated:
the evidence here did not compel the grant
of a new trial.
To the extent that the
duration of deliberations is relevant at
all, this was not a complex case. If the
jury credited Mata-Gutierrez's testimony,
which directly implicated Aguilera in the
charged conduct, then lengthy deliberations

5

were unnecessary. The district court did
not abuse its discretion in denying
Aguilera's motion for a new trial.
Aguilera,

625

F.3d

at

487.

Regarding

the

safety

valve

interview, the 8th Circuit ruled that:
In his safety-valve statement, Aguilera
continued to proclaim his innocence,
despite the government's proof that he
participated in a conspiracy to possess and
distribute methamphetamine. The district
court simply did not believe that Aguilera
was telling the subjective truth as he knew
it, and this finding was not clearly
erroneous.
Aguilera, 625 F.3d at 488.
Following the 8th Circuit’s decision, Mr. Aguilera timely
filed the present 28 U.S.C § 2255 petition.2

Docket No. 2.

On December 7, 2012, this Court entered an Initial Review
Order allowing Mr. Aguilera’s case to proceed and appointing
2

As was stated in the Ms. Forsyth’s Brief in Support of
Motion to Withdraw, “28 U.S.C.§2255(f) places a one year
statute of limitations on the filing of a 2255 motion. The
mandate for Mr. Aguilera’s appeal was filed November 17, 2010.
At first blush, it would appear that Mr. Aguilera’s 2255
motion was filed untimely, however a series of pro se Motions
for Extension of time were filed and granted.
The last
extension was granted on September 27, 2012, by United States
Magistrate Judge Leonard T. Strand setting a deadline of
November 5, 2012 for the filing of the 2255 motion.
Mr.
Aguilera filed his 2255 motion on November 2, 2012, thus his
motion was timely filed.” Docket No. 7, Att. 1, p. 1-2.
6

attorney Priscilla Forsyth as his attorney. Docket No. 3. On
February 7, 2013, Ms. Forsyth filed a Motion to Withdraw
pursuant to the holding in Anders v. California, 386 U.S. 738
(1967).

Docket No. 7.

On May 8, 2013, the Government filed

a Motion to Dismiss Case as Frivolous.

Docket No. 8.

As

stated above, the Court held a joint Motion to Dismiss/merits
hearing on October 21, 2013.

During that hearing, the Court

verbally denied Ms. Forsyth’s Motion to Withdraw.
No. 12.

See Docket

Both the Petitioner, Mr. Aguilera, and his former

Attorney, Wallace Taylor, had an opportunity to be heard
during the hearing.

Following that hearing, the Court took

all matters under advisement.
III.

MOTION TO DISMISS STANDARD
A district court is given discretion in determining

whether to hold an evidentiary hearing on a motion under 28
U.S.C. § 2255.

See United States v. Oldham, 787 F.2d 454, 457

(8th Cir. 1986).

In exercising that discretion, the district

court must determine whether the alleged facts, if true,
See Payne v. United States, 78

entitle the movant to relief.

F.3d 343, 347 (8th Cir. 1996).

“Accordingly, [a district

court may summarily dismiss a motion brought under 28 U.S.C.
7

§ 2255] if (1) the ... allegations, accepted as true, would
not entitle the [movant] to relief, or (2) the allegations
cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than
statements of fact.”

Engelen v. United States, 68 F.3d 238,

240–41 (8th Cir. 1995) (citations omitted); see also Delgado
v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (stating
that an evidentiary hearing is unnecessary where allegations,
even if true, do not warrant relief or allegations cannot be
accepted as true because they are contradicted by the record
or lack factual evidence and rely on conclusive statements);
United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973)
(stating that no evidentiary hearing is necessary where the
files and records of the case demonstrate that relief is
unavailable or where the motion is based on a question of
law).

Stated differently, a 28 U.S.C. § 2255 motion can be

dismissed without a hearing where “the files and records of
the case conclusively show that the prisoner is entitled to no
relief.”

28 U.S.C. § 2255; see also Standing Bear v. United

States, 68 F.3d 271, 272 (8th Cir. 1995) (per curiam).

See

also Hessman v. United States, C08-3052-LRR, 2012 WL 10486
(N.D. Iowa Jan. 3, 2012), appeal dismissed (June 21, 2012).
8

IV.

MOTION TO DISMISS ANALYSIS
As discussed above, the Government filed a Motion to

Dismiss, arguing Mr. Aguilera’s Petition is frivolous.

The

Government argues:
On November 5, 2012, Movant filed his pro
se § 2255 petition. (CvD 1). Pursuant to
court order, attorney Priscilla Forsyth,
filed a motion to withdraw and brief in
support of motion to withdraw on February
6, 2013, pursuant to Anders v. California,
386 U.S. 738 (1976), stating after thorough
review of the record, no non-frivolous
issues were present in Movant’s pro se §
2255 motion.
Attorney Forsyth offered
limited arguments to support Movant’s
safety-valve claim pursuant to Anders,
however states she does not have any
argument for the Court as to the other
issues raised in Movant’s pro se § 2255
motion and requested Movant be allowed to
address any additional issues in a pro se
brief. (CvD 7-1, p. 6). The government
agrees with Ms. Forsyth and asserts that
Movant makes no non-frivolous claims in his
Section 2255 motion. At this point, the
court would be within its discretion to
dismiss the case because Movant has failed
to present non-frivolous claims.
See
United States v. Arcoren, 633 F. Supp. 2d
752, 757 (D. S.D. 2009).
Docket No. 8, p. 2.
Because the Court had an opportunity to hear from both
Mr. Aguilera and Mr. Taylor during the hearing, the Court will

9

deny the Government’s Motion to Dismiss and instead consider
Mr. Aguilera’s 28 U.S.C. § 2255 on its merits.
V.

HABEAS STANDARD
28 U.S.C. § 2255(a) provides,
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 law 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.

VI.

ISSUES
Mr. Aguilera’s initial pro se Petition, Docket No. 1,

Att. 2, raises several issues.

First, Mr. Aguilera argues

ineffective assistance of counsel.

Next, Mr. Aguilera argues

that facts affecting his sentence should have been found by
the jury.

Finally, Mr. Aguilera argues the sentence was

unreasonable.
VII.

The Court will consider these issues below.

ANALYSIS
A.

Ineffective Assistance of Counsel

The primary issue raised in Mr. Aguilera' Petition is
ineffective assistance of counsel related to the “safety
10

valve” request.

As numerous courts have stated, “[s]ection

2255 relief is not available to correct errors which could
have been raised at trial or on direct appeal, absent a
showing of cause and prejudice..., or a showing that the
alleged

errors

were

fundamental

defects

complete miscarriage of justice...”
8

F.3d

1313,

1314

(8th

Cir.

resulting

in

a

Ramey v. United States,

1993)

(internal

citations

omitted).
Moreover, defendants often raise claims that would not
ordinarily be cognizable on collateral review by couching them
as ineffective assistance claims.
477 U.S. 365, 383 (1986).
Kimmelman,

477

U.S.

at

See Kimmelman v. Morrison,

But as the court explained in

381,

such

claims

must

meet

the

“rigorous standard” of Strickland v. Washington, 466 U.S. 668
(1984).

In this case, the Government points out that Mr.

Aguilera’s safety valve argument was already considered by the
8th Circuit Court of Appeals.

However, Mr. Aguilera now

couches the safety valve argument in terms of ineffective
assistance of counsel.

Accordingly, the Court will consider

his safety valve argument in terms of ineffective assistance
of counsel.

11

“[T]he

right

to

counsel

assistance of counsel.”
771 (1970).
guarantees

is

the

right

to

effective

McMann v. Richardson, 397 U.S. 759,

The Fourteenth Amendment Due Process Clause
the

right

to

a

fair

trial.

Washington, 466 U.S. 668, 684-85 (1984).

Strickland

v.

The Sixth Amendment

guarantees the right to assistance of counsel.

U.S. Const.

Amend. VI. In Strickland, the Supreme Court elaborated on the
relationship between the Fourteenth and Sixth Amendments:
The benchmark for judging any claim of
ineffectiveness must be whether counsel’s
conduct
so
undermined
the
proper
functioning of the adversarial process that
the trial cannot be relied on as having
produced a just result.
466 U.S. at 686.
The moving party must demonstrate two components to
establish ineffective assistance of counsel:
conduct was deficient, and (2) prejudice.

(1) counsel’s

466 U.S. at 687.

Counsel’s conduct is deficient when it is unreasonable “under
prevailing professional norms.”

Padilla v. Kentucky, 130 S.

Ct. 1473, 1481 (2010) (quoting Strickland, 466 U.S. at 688).
Counsel’s conduct is prejudicial if “counsel’s errors” are so
serious that they “deprive the defendant of a fair trial . .
. .”

466 U.S. at 687.

In other words, a petitioner must show

“there is a reasonable probability that, but for counsel’s
12

unprofessional errors, the result of the proceeding would have
been different.”
does

not

require

“preponderance
probability
outcome.”

466 U.S. at 694.

of

a

different

the

sufficient

A reasonable probability
outcome

evidence”
to

but

undermine

be
does

proven

by

require

confidence

in

a
“a
the

Id.

After his conviction, Mr. Aguilera hoped to receive a
“safety-valve” sentence reduction.

In most cases, defendants

give oral statements to law enforcement offices to accomplish
the safety-valve “debriefing.”

However, in this case, Mr.

Aguilera gave a written safety valve statement.

As the Court

of Appeals explained:
The safety-valve provisions permit a
district court to impose a sentence below
the statutory minimum term of imprisonment
if,
among
other
requirements,
“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.”
18 U.S.C. § 3553(f)(5); see USSG §
5C1.2(a)(5). The defendant has the burden
to prove that he qualifies for this relief,
and we review for clear error the district
court's findings about the completeness and
truthfulness of a defendant's provision of
information.
United States v. Soto, 448
F.3d 993, 995 (8th Cir. 2006)...
The district court agreed with Aguilera
that safety-valve relief may be granted
13

even when the defendant maintains that he
is innocent. And the court did not require
Aguilera to prove that his safety-valve
statement was objectively true, as required
by the majority in Reynoso [United States
v. Reynoso, 239 F.3d 143 (2d Cir. 2000)].
After discussing Reynoso, the district
court noted that “the ruling of this Court
is not going to be that it has to be that
he had to prove it was true.” (S. Tr. 48).
The court explained instead that Aguilera
“does have to carry the burden of proof to
determine-persuade the Court that he has
fully and completely revealed everything,
and the Court felt that under the
circumstances as we've talked about for the
last couple of hours that that wasn't
done.” (S. Tr. 55).
Even accepting for purposes of analysis
that a defendant seeking safety-valve
relief need provide only that information
which he subjectively believes is true, the
district court did not clearly err in
denying relief to Aguilera.
In his
safety-valve statement, Aguilera continued
to proclaim his innocence, despite the
government's proof that he participated in
a conspiracy to possess and distribute
methamphetamine. The district court simply
did not believe that Aguilera was telling
the subjective truth as he knew it, and
this finding was not clearly erroneous.
See United States v. O'Dell, 204 F.3d 829,
838 (8th Cir. 2000).
Aguilera, 625 F.3d 487-488.
In

this

Petition,

Mr.

Aguilera

argues

that

it

was

ineffective assistance when Mr. Taylor allowed Mr. Aguilera to
submit a written safety valve statement, as opposed to the

14

traditional oral interview.

See Docket No. 2, Att. 1, p. 2-6

and Docket No. 7, Att. 1, p. 4, stating:
At the time of sentencing, there was a
brief discussion regarding the fact the
defendant gave a written statement rather
than
a
proffer
debriefing
to
the
Government, as is the usual practice.
(Sentencing Tr. p 34, line 23-41). During
that discussion, Mr. Taylor stated the
following, "Mr. Knief did, after receiving
this written statement last Thursday, I
would guess it was, e-mail me and ask if
Mr. Saldana-Lara [also known as Jorge
Osbaldo Aguilera] would submit to a
debriefing by the task force officers. I
responded that I wasn't sure what benefit
that would be since they wouldn't believe
him anyway but if I was missing something
to let me know if there was some beneficial
reason for doing it. I didn't receive any
response. But in any event, a debriefing
by law enforcement is not necessary for the
safety valve." (Sentencing Tr. p. 37, line
18-p.38, line 1).
It is not clear from the record whether Mr.
Taylor researched this specific issue, or
attempted to determine whether, although
not required, safety valve had in fact been
granted on a statement such as the one
submitted, without a debriefing by law
enforcement, testimony at trial or other
information
being
provided
by
the
defendant. It is also not clear from the
record whether Mr. Taylor specifically
discussed the issue of a debriefing for
safety valve with Mr. Aguilera or whether
he
made
that
determination
without
consultation with his client. While there
is no guarantee that a debriefing would
have resulted in the Court finding that Mr.
Aguilera had been truthful and complete in
15

the information he provided, it would have
given him a chance to answer or not to
answer
the
questions
posed
by
the
Government during the sentencing hearing,
such as who the person is he went with from
Arizona to Omaha, who introduced him to
Luis Mata-Guiterrez, etc. (Sentencing Tr.
p. 35).
Both Mr. Aguilera and Ms. Forsyth go on to argue that Mr.
Aguilera was prejudice by the decision to do a written safetyvalve statement.
The Government responds by saying that Mr. Taylor made a
valid strategic choice regarding the written safety-valve
statement.

As stated in the Government’s Motion to Dismiss:

it was the professional opinion of Movant’s
counsel that providing a debriefing to
government agents would have been harmful
to Movant. “The reason that I advised Mr.
Aguilera to submit to a written statement
is that during my representation of him he
continually denied his guilt and I had
difficulty getting a consistent story from
him. Based on my experience in other cases
I knew that his denial of the charges and
his inability to have a consistent story
would be fatal to a successful safety valve
interview.”
Docket No. 7, p. 4.

The Government attached Mr. Taylor’s

affidavit to its Motion to Dismiss.

Beyond the above quoted

portion of affidavit, Mr. Taylor also stated that, “[i]n
addition, an interview with government agents would have

16

opened Mr. Aguilera up to questions beyond just his conduct in
the charged offense.”

Docket No. 7, Att. 1, p. 1-2.

One of the core principals of habeas jurisprudence is
that

trial

counsel's

unchallengeable

strategic

unless

they

decisions
are

are

based

“virtually

on

deficient

investigation, in which case the presumption of sound trial
strategy ... founders on the rocks of ignorance.”

Link v.

Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006) (quoting White
v.

Roper,

quotations

416

F.3d

728,

omitted).

732

One

of

(8th

Cir.

trial

2005))

(internal

counsel's

strategic

decisions is that of “reasonably deciding when to cut off
further investigation.”

Winfield v. Roper, 460 F.3d 1026,

1034 (8th Cir. 2006).
The Court agrees with the Government that Mr. Taylor made
a valid strategic decision when he opted to have Mr. Aguilera
provide a written safety-valve statement.

Mr. Aguilera had a

history of denying his involvement in the charged offense.
Mr. Aguilera’s best chance of receiving safety-valve relief
was to provide the Government, a tailored, specific, written
statement. Mr. Taylor’s decision to avoid a verbal interview,
when such an interview could have further prejudiced Mr.
Aguilera’s position, was sound.

17

Accordingly, Mr. Aguilera

cannot prove the deficient prong of the Strickland standard.
Moreover, even if he could, it is far from certain that Mr.
Taylor’s strategic decision prejudiced Mr. Aguilera.

Mr.

Aguilera could have found himself in a worse position had he
provided a verbal debriefing.

Accordingly, Mr. Aguilera’s 28

U.S.C. § 2255 claim related to ineffective of assistance must
be denied.
B.

Facts Regarding Sentence Enhancement

Ground two of Mr. Aguilera’s Petition argues that facts
which increase a defendant’s sentence must be found by a jury.
See Docket No. 2, p. 5.

However, this issue was not briefed

by Mr. Aguilera or his attorney.

Additionally, as argued by

the Government:
This is claim is refuted by the record.
The verdict form shows the jury found
Movant guilty of the drug type and
quantity. (CrD 80). Even if this claim
was supported by the record, it would be
procedurally barred because Movant did not
challenge the finding of drug type and
quantity on direct appeal. Frady, 456 U.S.
at 165.
Docket No. 8, p. 5. See 08-CR-4095, Docket No. 80, “Verdict
Form.”

Accordingly, Mr. Aguilera’s Petition related to the

drug quantity sentence enhancement must be denied.

18

C.

Mitigating Factors/Unreasonable Sentence

Finally, Mr. Aguilera argues that, “[i]n the instant
matter, the Court was aware of several mitigating facts,
relevant to sentencing under 18 U.S.C. § 3553(a), but failed
to actually consider those factors in imposing a sentence
which was ultimately unreasonable...

Accordingly, district

courts must consider all factors-even factors prohibited by
the formerly mandatory guideline-in determining the type of
sentence

that

3553(a)(2).”

satisfies

the

sentencing

mandate

Docket No. 2, Att. 2, p. 9-11.

under

§

Mr. Aguilera

goes on to argue that his counsel was ineffective for failing
to bring the ‘mitigating factors’ to the Court’s attention.
Id.
The Government responds by saying:
Next Movant claims his attorney was
ineffective for failing to object to
numerous errors in the PSIR; for failing to
contest the government’s alleged breach of
plea agreement, and failing to address
these claims on appeal. (CvD 1-3, p. 6).
Movant does not say what errors in the PSIR
his attorney failed to object to and there
was no plea agreement in existence. This
case went to trial, therefore, it is
impossible for a “breach of the plea
agreement” to exist.
Movant also claims
his sentence was unreasonable and that it
was greater than necessary to accomplish
the goals of 18 U.S.C. § 3553(a)(2) because
the court erred by failing to consider §
19

3553(a)(6)
mitigating
factors
in
determining his sentence. (CvD 1-3, pp. 8,
9, 10). Movant also claims his attorney
was ineffective for failing to object to
the Court not considering the mitigating
factors and preserving the issue for
appeal. (CvD 1-3, p. 10). However, Movant
does not state what mitigating factors this
Court should have considered, therefore,
his counsel cannot be ineffective for not
objecting to these unknown mitigating
factors.
Docket No. 8, p. 5-6.
The Court agrees that this argument is not sufficiently
grounded in facts to be cognizable.

Mr. Aguilera has failed

to articulate which facts he feels the Court ignored or how
those facts led to an “unreasonable” sentence.
Based on the references to a “plea agreement” in his
Memorandum of Law, the Court believes that Mr. Aguilera
regrets his decision to take his case to trial.

It is

possible that accepting a plea agreement may have led to a
reduced sentence.

However, that regret does not constitute a

claim upon which habeas relief can be granted.
Moreover, to the extent that Mr. Aguilera argues his
counsel, Mr. Taylor, was ineffective for failing to raise
mitigating

factors,

that

claim

also

fails.

Under

the

Strickland standard discussed above, a petitioner must show
both deficient performance and prejudice to make a claim for
20

ineffective assistance of counsel. In this case, Mr. Aguilera
has failed to articulate what factors Mr. Taylor should have
raised.

Accordingly, it is impossible for this Court to

determine that Mr. Taylor’s performance was deficient or that
a hypothetical deficiency resulted in prejudice.
For the reasons set out above, Mr. Aguilera’s Petition
for 28 U.S.C. § 2255 relief on the ground that he received an
unreasonable sentence must be denied.3
VIII.

CERTIFICATE OF APPEALABILITY

Under the Code, in most situations, a party must receive
a Certificate of Appealability before that party can appeal a
district court’s ruling on a habeas petition to the circuit
court.4

28

U.S.C.

§2253(c)(2)

gives

the

District

Court

discretionary power to grant a Certificate of Appealability.
Under that section, the Court should only issue a certificate
of appealability if “the applicant has made a substantial
showing of the denial of a constitutional right.”

Slack v.

McDaniel, 529 U.S. 473, 482 (2000)(citing 28 U.S.C. §2253(c)).

3

To the extent Mr. Aguilera’s pleadings raise other pro
se arguments, the Court has considered those arguments and
determined they are not supported by the record and must be
denied.
4

See, generally, 28 U.S.C. §2253.
21

In Slack, the Supreme Court defined “substantial showing” as
follows:
To obtain a [certificate of appealability]
under §2253(c), a habeas prisoner must make
a substantial showing of the denial of a
constitutional right, a demonstration that,
under Barefoot [v. Estelle, 463 U.S.880, at
894,], includes showing that reasonable
jurists could debate whether (or, for that
matter, agree that) the petition should
have been resolved in a different manner or
that the issues presented were “‘adequate
to
deserve
encouragement
to
proceed
further.’” Barefoot, 463 U.S. 890, at 893,
and n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090
(sum[ming] up the “substantial showing”
standard).
Slack, 529 U.S. at 483-84. See also Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000).
Mr.

Aguilera’s

counsel

briefed

one

primary

issue,

ineffective assistance of counsel related to the safety valve
sentence reduction.

Even though the Court is satisfied with

its ruling, the Court believes that it is possible that
“reasonable jurists could debate whether...the petition should
have been resolved in a different manner”. Slack, 529 U.S. at
483-84.

The existence of the circuit courts and the Supreme

Court is a testament to the fact that district courts are not
infallible.

The Court's decision in this case was a judgment

call, and this Court is of the opinion that all its judgment

22

calls

should

be

reviewable.

Mr.

Aguilera’s

claim

is

sufficiently well founded that a review would be appropriate.
The case of Tiedeman v. Benson, 122 F.3d 518 (8th Cir.
1997) states that in granting a Certificate of Appealability,
this Court must state the issues upon which the applicant may
have

made

a

substantial

constitutional rights.

showing

of

the

denial

of

his

Accordingly, Mr. Aguilera may appeal

the ineffective assistance of counsel claim discussed above.
IX.

CONCLUSION
Mr. Aguilera’s Petition for habeas relief pursuant to 28

U.S.C. § 2255 is denied.

The Clerk of Court shall issue a

certificate of appealability as provided above.
IT IS SO ORDERED this 24th day of January, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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