Avalos-Montanez v. United States of America

Filing 8

OPINION, MEMORANDUM AND ORDER: HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. No. 1 ], is denied. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 01/09/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LUIS ENRIQUE AVALOS-MONTANEZ ,
Petitioner,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:11CV1962HEA
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Respondent.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Luis Enrique Avalos-Montanez’s Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No.
1]. The United States of America has responded to the motion, pursuant to the
Court’s Case Management Order.
PROCEDURAL HISTORY
On June 25, 2010, a Grand Jury indicted Movant charging him with one
count of conspiracy to possess with intent to distribute crack cocaine in violation of
21 U.S.C. § 841(a)(1).
On September 3, 2010, Movant appeared before this Court for a change of
plea hearing. Movant admitted the violation and on January 24, 2011, the Court
sentenced Movant to a term of imprisonment of 87 months. Movant did not appeal
his conviction.

Movant filed this Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 on November 9, 2011.
CLAIM FOR RELIEF
Movant has raised a single ground for post-conviction relief: Counsel was
ineffective in: that counsel mislead Movant with the statement that he would likely
receive a five year sentence for pleading guilty, that counsel was ineffective in his
advice regarding accepting a plea and advising him of the evidence the government
must produce if Movant went to trial.
STANDARD FOR RELIEF UNDER 28 U.S.C. 2255
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on
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. In order to
obtain relief under § 2255, the movant must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States
v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).

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Claims brought under § 2255 may also be limited by procedural default. A
movant “cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255
motion if the issue could have been raised on direct appeal but was not.” Anderson
v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or
jurisdictional claims not raised on direct appeal cannot be raised collaterally in a §
2255 motion “unless a petitioner can demonstrate (1) cause for the default and
actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993,
1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
DISCUSSION
RIGHT TO EVIDENTIARY HEARING
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “‘[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.’” Shaw v. United States, 24 F.3d
1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the movant] to relief.’” Payne v. United States, 78 F.3d
343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir.
1986)). The Court may dismiss a claim “without an evidentiary hearing if the claim
is inadequate on its face or if the record affirmatively refutes the factual assertions
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upon which it is based.” Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905
F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant’s claim can
be conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner=s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. ' 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel=s performance Afell below an objective standard of reasonableness.@
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing Athere is a reasonable probability that, but for
counsel=s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
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a Ashowing that counsel made errors so serious that counsel was not functioning as
the >counsel= guaranteed the defendant by the Sixth Amendment.@ Id. Review of
counsel=s performance by the court is Ahighly deferential,@ and the Court presumes
Acounsel=s conduct falls within the wide range of reasonable professional
assistance.@ Id. The court does not Asecond-guess@ trial strategy or rely on the
benefit of hindsight, id., and the attorney=s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. LedezmaRodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
Aeliminate the distorting effects of hindsight@ by examining counsel=s performance
from counsel=s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel=s error, and Athat >there is a reasonable probability that,
but for counsel=s unprofessional errors, the result of the proceeding would have
been different.= @ Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). AA reasonable probability is a probability sufficient to undermine confidence
in the outcome.@ Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court Amust consider the totality of the evidence before the judge or
jury.@ Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
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The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,
however, is different in the context of guilty pleas. Instead of merely showing that
the result would be different, the defendant who has pled guilty must establish that
Athere is a reasonable probability that, but for counsel=s errors, he would not have
pleaded guilty and would have insisted on going to trial.@ Hill v. Lockhart, 474
U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Movant=s claims regarding counsel=s advice is belied by the record. Movant
advised the Court, in open court and under oath, that he was fully satisfied with the
work his lawyer had done for him. When asked if there was anything he wanted
his lawyer to do that he failed to do, Movant advised the Court in the negative.
The Court specifically asked Movant if anyone had given him any prediction or
promise as to exactly what his sentence would be from the Court. Movant
categorically denied any predictions or promises under oath and he specifically
indicated that he understood that the sentence imposed was entirely within the
authority of the Court. Likewise, when asked if there was anything at all that
Movant wanted from his lawyer, Movant denied same. Movant’s claim now that
counsel failed is a crystal clear attempt to avoid the consequences of the crime to
which Movant voluntarily entered a guilty plea.

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As Respondent correctly argues, even assuming arguendo any erroneous
prediction from counsel, Movant cannot satisfy the prejudice prong of the
Strickland standard in a guilty plea context. Movant must establish that but for
counsel’s performance, there is a reasonable probability the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. “[E]ven if
defense counsel's performance was somehow deficient by giving [Movant] a faulty
sentencing prediction, [Movant] cannot establish that but for this error, he would
not have pleaded guilty, but instead proceeded to trial. He was given all of the
relevant information, and chose to plead guilty anyway. [Movant] therefore cannot
establish Hill prejudice. 474 U.S. at 59, 106 S.Ct. 366.” U.S. v. Davis, 508 F.3d
461, 463 (8th Cir. 2007).
CONCLUSION
Based upon the foregoing analysis, Movant has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that “[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 substantial showing of the denial of a constitutional right requires that “issues
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are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. No. 1], is denied.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 9th day of January, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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