Ballesteros v. United States of America
INITIAL REVIEW ORDER denying in its entirety 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (CR12-4048-MWB). This case is dismissed in its entirety. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 11/8/13. (copy w/nef mailed to petitioner) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
RICARDO M. BALLESTEROS,
INITIAL REVIEW ORDER
UNITED STATES OF AMERICA,
MOTION TO VACATE SENTENCE
AND JUDGMENT PURSUANT TO 28
U.S.C. § 2255
I. INTRODUCTION AND BACKGROUND
This case is before me on petitioner Ricardo M. Ballesteros’s pro se Motion To
Vacate Sentence and Judgment Pursuant to 28 U.S.C. § 2255 (docket no. 1) filed on
October 28, 2013. I have conducted the required review under Rule 4(b) of the Rules
Governing Section 2255 Proceedings and conclude that summary dismissal of petitioner’s
§ 2255 motion is appropriate at this time. See Blackledge v. Allison, 431 U.S. 63, 75-76
(1977) (making clear that summary dismissal is appropriate where the allegations are vague
or conclusory, palpably incredible, or patently frivolous or false).
On September 13, 2012, Ballesteros pleaded guilty to conspiring to distribute 500
grams or more of methamphetamine which contained at least 50 grams or more of pure
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
On June 13, 2013, he was sentenced to 120 months imprisonment and 5 years supervised
release, the mandatory minimum sentence. Ballesteros did not appeal his sentence. On
October 28, 2013, Ballesteros filed a Pro Se Motion Under § 2255 To Vacate, Set Aside,
Or Correct Sentence By A Person In Federal Custody in which he raises a single claim for
relief. Ballesteros alleges:
I started out with a lawyer by the name of Ian McConeghey
that my mother got he told me to do a debriefing and I would
only get 4 or 5 years. Every time I asked him some questions
I fealt [sic]like he didn’t know the answers to. Then i [sic]
called him and he said he was no longer able to stay on my
case that i [sic] would get a new lawyer. He told myself and
my wife that I would only do 4 or 5 years.
Motion at 4 ¶ 12(a). I construe Ballesteros’s claim as a claim of ineffective assistance of
II. LEGAL ANALYSIS
A. Ballesteros’s Ineffective Assistance Of Counsel Claim
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. CONST. AMEND. VI. Thus, a criminal defendant is
constitutionally entitled to the effective assistance of counsel both at trial and on direct
appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bear Stops v. United States, 339 F.3d
777, 780 (8th Cir. 2003); see also Steele v United States, 518 F.3d 986, 988 (8th Cir.
2008). The Eighth Circuit Court of Appeals has recognized that, if a defendant was denied
the effective assistance of counsel guaranteed by the Sixth Amendment, “then his sentence
was imposed ‘in violation of the Constitution,’ . . . and he is entitled to relief” pursuant
to § 2255(a). King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). Both the
Supreme Court and the Eighth Circuit Court of Appeals have expressly recognized that a
claim of ineffective assistance of counsel should be raised in a § 2255 proceeding, rather
than on direct appeal, because such a claim often involves facts outside of the original
record. See Massaro, 538 U.S. at 504-05 (2003); United States v. Hughes, 330 F.3d
1068, 1069 (8th Cir. 2003) (“When claims of ineffective assistance of trial counsel are
asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”).
“‘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.’”Cullen v. Pinholster, 131 S.
Ct. 1388, 1403 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984), with
emphasis added). To assess counsel’s performance against this benchmark, the Supreme
Court developed in Strickland a two-pronged test requiring the petitioner to show “both
deficient performance by counsel and prejudice.” Strickland, 466 U.S. at 687-88, 697;
see Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009). “‘Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable.’” Gianakos v.
United States, 560 F.3d 817, 821 (8th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
As to the deficient performance prong, “The Court acknowledged [in Strickland]
that ‘[t]here are countless ways to provide effective assistance in any given case,’ and that
‘[e]ven the best criminal defense attorneys would not defend a particular client in the same
way.’” Pinholster, 131 S. Ct. at 1403 (quoting Strickland, 466 U.S. at 689). Moreover,
Recognizing the “tempt[ation] for a defendant to
second-guess counsel’s assistance after conviction or adverse
sentence,” [Strickland, 466 U.S. at 689], the Court established
that counsel should be “strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment,” id., at 690, 104
S. Ct. 2052. To overcome that presumption, a defendant must
show that counsel failed to act “reasonabl[y] considering all
the circumstances.” Id., at 688, 104 S. Ct. 2052. The Court
cautioned that “[t]he availability of intrusive post-trial inquiry
into attorney performance or of detailed guidelines for its
evaluation would encourage the proliferation of ineffectiveness
challenges.” Id., at 690, 104 S. Ct. 2052.
Pinholster, 131 S. Ct. at 1403. To put it another way,
To establish deficient performance, a person challenging
a conviction must show that “counsel’s representation fell
below an objective standard of reasonableness.” [Strickland,]
466 U.S. at 688, 104 S. Ct. 2052. . . . The challenger’s
burden is to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id., at 687, 104 S. Ct.
Harrington v. Richter, 131 S. Ct. 770, 787 (2011); accord Premo v. Moore, 131 S. Ct.
733, 739 (2011) (quoting Richter). There are two substantial impediments to making the
required showing of deficient performance.
First, “‘[s]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.’” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting
Strickland, 466 U.S. at 690). Second, “[t]here is a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’” Id. (quoting
Strickland, 466 U.S. at 689); Davis v. Norris, 423 F.3d 868, 877 (8th Cir. 2005) (“To
satisfy this prong [the movant] must overcome the strong presumption that his counsel’s
conduct fell within the wide range of reasonable professional assistance.”). Also, the court
“‘must “judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.”’” King, 595 F.3d at 852-53
(quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996), in turn quoting Strickland,
466 U.S. at 690).
The second prong of the Strickland analysis requires the challenger to prove
prejudice. Pinholster, 131 S. Ct. at 1403 (citing Strickland, 466 U.S. at 691-92). “‘An
error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.’” Gianakos,
560 F.3d at 821 (quoting Strickland, 466 U.S. at 691). As the Supreme Court has
“The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
[Strickland, 466 U.S.] at 694, 104 S. Ct. 2052. “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Ibid. That requires a “substantial,” not just
“conceivable,” likelihood of a different result. Richter, 562
U.S., at ––––, 131 S. Ct., at 791.
Pinholster, 131 S. Ct. at 1403. However, even where the petitioner “suffered prejudice
from his lawyer’s error,” he is not entitled to § 2255 relief unless the lawyer’s error was
also the result of conduct that was professionally unreasonable at the time. King, 595 F.3d
The two prongs of the “ineffective assistance” analysis are usually described as
sequential. Thus, if the movant fails to show deficient performance by counsel, the court
need proceed no further in its analysis of an “ineffective assistance” claim. United States
v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003). On the other hand, courts “do not . . .
need to address the performance prong if petitioner does not affirmatively prove
prejudice.” Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999) (citing Pryor v.
Norris, 103 F.3d 710 (8th Cir. 1997)); accord Gianakos, 560 F.3d at 821 (“‘We need not
inquire into the effectiveness of counsel, however, if we determine that no prejudice
resulted from counsel’s alleged deficiencies.’ Hoon v. Iowa, 313 F.3d 1058, 1061 (8th
Cir. 2002) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052).”).
Here, Ballesteros contends that he was misinformed by his original counsel about
the period of incarceration he faced. The fundamental flaw in his claim is that he does not
allege that his defense was prejudiced in any way by this alleged misinformation.
Ballesteros’s original counsel was permitted to withdraw from the case on July 2, 2012,
because he had accepted employment which would not allow him to continue to perform
his duties to Ballesteros. That same date, Stuart J. Dornan was appointed to represent
Ballesteros. Over two months later, Ballesteros pleaded guilty pursuant to a written plea
agreement. Ballesteros does not allege that Dornan’s work was ineffective whatsoever.
Indeed, I granted a motion for downward variance filed on Ballesteros’s behalf by Dornan
and sentenced him to the mandatory minimum sentence. Accordingly, Ballesteros’s claim
of ineffective assistance of counsel fails because he was not prejudiced by his original
I also conclude that Ballesteros’s claim is precluded by his guilty plea. A voluntary
and intelligent guilty plea forecloses federal collateral review of alleged constitutional
errors preceding the plea. See Tollett v. Henderson, 411 U.S. 258, 266–67 (1973); Neely
v. McDaniel, 677 F.3d 346, 349 (8th Cir. 2012).
Ballesteros’s claim alleges a
constitutional violation that occurred before he pleaded guilty. Significantly, Ballesteros
also does not claim that his original counsel’s alleged misinformation had any affect on his
decision to plead guilty. Thus, Ballesteros’s guilty plea waived his ineffective assistance
of counsel claim because that claim does not implicate the validity of his guilty plea. See
Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (holding that a claim of preplea, ineffective assistance of counsel is waived); see also Claybron v. Stovall, No. 0573676, 2007 WL 551599, at *6 (E.D. Mich. Feb.20, 2007) (“a voluntary guilty plea
waives all claims of ineffective assistance of counsel, except insofar as the ineffectiveness
is alleged to have rendered the guilty plea involuntary.”). Accordingly, Ballesteros’s claim
of ineffective assistance of counsel is precluded by his guilty plea.
B. Certificate Of Appealability
Denial of Ballesteros’s § 2255 Motion raises the question of whether or not he
should be issued a certificate of appealability for his claims therein. The requirement of
a certificate of appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in
pertinent part, as follows:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from—
(B) the final order in a proceeding under section 2255.
28 U.S.C. § 2253(c)(1)(B); accord FED. R. APP. P. 22(b). To obtain a certificate of
appealability on claims for § 2255 relief, a defendant must make “a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151
F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998);
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox, 133 F.3d at 569. Moreover,
the United States Supreme Court reiterated in Miller-El that “‘[w]here a district court has
rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.’” Miller-El,
537 U.S. Ct. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
I find that reasonable jurists would not debate the merits of Ballesteros’s ineffective
assistance of counsel claim, and no certificate of appealability will issue in this case. See
28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).
THEREFORE, for the reasons discussed above, petitioner Ballesteros’s pro se
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person
In Federal Custody (docket no. 1) is denied in its entirety. This case is dismissed in its
entirety. No certificate of appealability will issue for any claim or contention in this case.
IT IS SO ORDERED.
DATED this 8th day of November, 2013.
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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