Vivar v. USA
Filing
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ORDER denying 1 Motion to Vacate (2255) as to Ever Vivar (2). Signed by Judge Larry R. Hicks on 9/18/2015. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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EVER VIVAR,
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Defendant.
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3:11-CR-00080-LRH-WGC
ORDER
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Before the Court are Defendant Ever Vivar’s (“Vivar”) Motion to Vacate Sentence Under
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28 U.S.C. § 2255 (Doc. #127),1 Motion for Leave to File Reply (Doc. #130), and Motion for
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Reconsideration Pursuant to Rule 60(b)(6) (Doc. #136). The government filed a response to
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Vivar’s § 2255 Motion (Doc. #129), to which Vivar replied (Doc. #130, Ex. A).2 It appears that
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Vivar’s Motion for Reconsideration is premised on a belief that the Court has ruled on his Motion
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to Vacate Sentence for ineffective assistance of counsel. The Court has not yet ruled on Vivar’s
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Motion to Vacate, but resolves all pending motions in this Order.
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I.
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Facts and Procedural History
On May 9, 2012, a grand jury returned a second superseding indictment charging Vivar and
co-defendant Roman Alvarado with conspiracy to distribute fifty grams or more of actual
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Refers to the Court’s docket number.
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The Court grants Vivar’s Motion for Leave to file a reply. Doc. #130.
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methamphetamine and aiding and abetting, and four counts of distribution of methamphetamine
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and aiding and abetting. Doc. #68. Vivar pleaded guilty to Count One pursuant to a written plea
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agreement on August 7, 2012. Doc. #89. The Probation Office issued a presentence report and a
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revised presentence report, and the Court held Vivar’s sentencing hearing on June 26, 2013. The
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Court imposed a sentence of 120 months, the statutory mandatory minimum, and entered judgment
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on June 28, 2013. Doc. #111. Vivar filed a Notice of Appeal on August 12, 2013. Doc. #112. On
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December 24, 2013, the Ninth Circuit Court of Appeals granted the government’s Motion to
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Dismiss appeal based on a the presence of a valid appeal waiver. Doc. #124.
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Vivar filed his Motion to Vacate on February 5, 2014. Doc. #127. Upon the Court’s Order,
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the government filed a timely response. Doc. #128; Doc. #129. Vivar represents that he was
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unable to file a timely reply due to a false accusation that he was involved in a prison riot, which
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caused him to be placed in a special housing unit until April 22, 2014. Doc. #130 at 2. On May 8,
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2014, Vivar filed a Motion for Leave to file a reply, attaching said reply to the Motion. Id., Ex. A.
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Thereafter, Vivar filed two Motions to Reduce Sentence. Doc. #131; Doc. #134. On April 28,
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2015, the Court denied Vivar’s Motions to Reduce Sentence because he had already been sentenced
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to the mandatory minimum of ten years in prison. Doc. #137.
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Vivar filed his Motion for Reconsideration on March 30, 2015. Doc. #136. It appears that
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Vivar requests that the Court reconsider an order dismissing his Motion to Vacate under § 2255.
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Given that the Court has not yet ruled on Vivar’s Motion to Vacate, Vivar’s Motion for
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Reconsideration is premature. This Order resolves all three Motions pending before the Court.
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II.
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Legal Standard
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct
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a sentence if “the sentence was imposed in violation of the Constitution or laws of the United
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States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was
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in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
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28 U.S.C. § 2255. A petitioner can base a § 2255 motion on the ineffective assistance of counsel
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prior to conviction or a plea deal. Strickland v. Washington, 466 U.S. 668, 684 (1984). In order to
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prevail on an ineffective assistance of counsel claim, the petitioner has the burden of proving two
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elements. “First, the defendant must show that counsel’s performance was deficient,” meaning that
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counsel was not functioning as a competent advocate. Id. at 687. “Second, the defendant must
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show that the deficient performance prejudiced the defense. This requires showing that counsel’s
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errors were so serious as to deprive the defendant of a fair trial.” Id. The Court “must indulge a
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strong presumption that counsel’s conduct falls within the wide range of reasonable professional
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assistance.” Id. at 689.
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III.
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Discussion
Vivar alleges four omissions that he claims supports his § 2255 Motion for ineffective
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assistance of counsel: (1) counsel failed to argue that the government breached the plea agreement;
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(2) counsel failed to challenge the sentence in excess of the statutory minimum; (3) counsel failed
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to object to the Court’s entering judgment on his guilty plea—to the conspiracy charge—when
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there was no factual basis for the charge; and (4) counsel failed to argue that evidence showing an
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“agreement” to possess with intent to distribute methamphetamine was insufficient. The
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government argues that these decisions do not fall below an objective standard of reasonableness,
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nor did this conduct prejudice Vivar.
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In order to prevail on a Motion to Vacate based on ineffective assistance of counsel under
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§ 2255, a prisoner must first establish that the attorney’s conduct fell below an objective standard
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of reasonableness. Id. at 687. The Court “must indulge a strong presumption that counsel’s
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conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To rebut
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this presumption, the moving party must show “that counsel made errors so serious that counsel
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was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at
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687. “Where a defendant enters a plea of guilty upon the advice of counsel, ‘the volunariness of
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the plea depends on whether counsel’s advice was within the range of competence demanded of
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attorneys in criminal cases.’” Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988) (quoting Hill v.
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Lockhart, 474 U.S. 52, 56 (1985)). “Gross mischaracterization of the likely outcome of the plea,
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combined with erroneous advice on the possible effects of going to trial, falls below the level of
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competence required for a defense attorney.” Id.
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Vivar has failed to establish that his counsel’s conduct fell below an objective standard of
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reasonableness. At Vivar’s change of plea hearing, the Court informed Vivar that by pleading
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guilty, he was giving up a number of important rights, such as the right to contest his charges at
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trial. Doc. #105 at 5:17-6:20. The Court also informed Vivar that at such a trial, each one of the
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elements of the charged offense would need to be proven beyond a reasonable doubt. Id. at 9:3-25.
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Vivar stated that these elements had been explained to him by his attorney, and that he understood
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that by pleading guilty he was admitting each of these elements. Id. at 10:2-9. Upon the Court’s
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questioning, Vivar stated that he was aware that a minimum ten year sentence could be applied,
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and that the maximum possible sentence for the charged crime was life in prison. Id. at 11:10-19;
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23:9-19. Vivar stated that the plea agreement had been explained in full by his attorney. Id. at
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14:14-21. The Court informed Vivar that the plea agreement provided that he could argue that he
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was eligible for a safety valve, but that any application of a safety valve was up to the sole
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discretion of the Court, and Vivar stated that he understood. Id. at 19:16-23. The Court also
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described the facts of Vivar’s offense, after which Vivar stated that these facts accurately reflected
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his personal conduct. Id. at 24:1-28:8.
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Two of Vivar’s arguments regarding ineffective assistance challenge counsel’s decision not
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to challenge the merits of the conspiracy charge. However, negotiating a plea deal—which
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necessarily forfeits a challenge to a charge on the merits—does not constitute ineffective assistance
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of counsel absent evidence indicating that counsel’s conduct in reaching the plea deal was
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objectively unreasonable. See Torrey, 842 F.2d at 237 (denying ineffective assistance claim
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following plea agreement, and finding that “[f]ailure to advise [defendant] of a collateral penalty
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cannot be held to be below an objective standard of reasonableness”). No such evidence exists
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here, and the Court’s colloquy during Vivar’s change of plea hearing indicates that Vivar’s guilty
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plea was knowing and voluntary. Accordingly, Vivar has not established ineffective assistance of
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counsel. See United States v. Frank, 36 F.3d 898, 903-04 (9th Cir. 1994) (denying the movant’s
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ineffective assistance of counsel claim because negotiation of the plea was not unconscionable, and
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noting that the guilty plea was supported by the movant’s open-court statements during the plea
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colloquy).
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Vivar also argues that counsel erred in failing to argue that the government breached the
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plea agreement by moving for conviction under 21 U.S.C. § 841(a)(1) and § 846, rather than 21
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U.S.C. § 843(b), which carries a lower mandatory sentence. Doc. #130, Ex. A at 2. This is not
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supported by the record. Count One of Vivar’s Second Superseding Indictment refers to
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“distribution of fifty (50) grams and more of actual methamphetamine, a Schedule II controlled
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substance, in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(A), and 846; and
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Title 18, United States Code, Section 2.” Doc. #68 at 1-2. The Plea Agreement refers to Count
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One of the Second Superseding indictment, for violations of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
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846. Doc. #90 at 3, 5. Additionally, Vivar was informed at his change of plea hearing that he was
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pleading guilty to Count One of the Second Superseding Indictment, which refers to the charge for
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violations of §§ 841 and 846. Accordingly, Vivar’s arguments concerning the government’s
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supposed breach of the plea agreement do not support vacating the sentence under § 2255.
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Because Vivar has not established that his counsel’s conduct fell below an objective
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reasonableness standard, he cannot establish his claim for ineffective assistance of counsel, and the
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Court need not consider the prejudice prong of Strickland.
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Vivar argues that the Court should hold a hearing before ruling on his § 2255 petition.
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Vivar points to § 2255(b), which states that the court should hold a hearing “[u]nless the motion
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and the files and records of the case conclusively show that the prisoner is entitled to no relief.” A
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hearing is not required for every § 2255 motion, but is mandatory “whenever the record does not
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affirmatively manifest the factual or legal invalidity of the petitioner’s claims.” Baumann v.
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United States, 692 F.2d 565, 570 (9th Cir. 1982). Mere conclusory statements do not justify a
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hearing, but the petitioner must make factual allegations which, if true, would entitle him or her to
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relief. Id. at 571.
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In Shah v. United States, the Ninth Circuit Court of Appeals affirmed the district court’s
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denial of the defendant’s § 2255 petition without a hearing because Shah’s ineffective assistance of
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counsel claims contradicted the statements that he made in court regarding his attorney’s
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representation. 878 F.2d 1156, 1158-62 (9th Cir. 1989). The court agreed with the district court
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that the defendant’s conclusory statements regarding ineffective assistance were directly
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contradicted by his Rule 11 hearing, in which the court elicited the factual basis for his plea and the
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defendant “stated that he understood the charges against him as well as the maximum sentence he
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might receive.” Id. at 1162. As in Shah, Vivar was informed of his rights at the Rule 11 hearing,
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and nonetheless knowingly and voluntarily pleaded guilty. Vivar stated that he understood the
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terms of the plea agreement, that the maximum possible sentence was life in prison, and that a
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determination of whether to apply a safety valve was within the Court’s discretion.
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The Court finds that Vivar has failed to allege facts to support his argument that a hearing
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is mandatory in this case. As discussed above, Vivar’s arguments challenging the merits of his
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conspiracy charge were waived when Vivar knowingly and voluntarily pleaded guilty. Vivar
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cannot now argue the merits of the underlying conspiracy charge because he stated in open court
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that he was guilty of this crime and that he understood the consequences of pleading guilty. See
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Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong
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presumption of verity.”). Besides stating that Vivar’s counsel was ineffective by declining to
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challenge the merits of the conspiracy charge, Vivar has not identified any specific conduct that
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would amount to ineffective assistance of counsel. Accordingly, the court finds that these
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arguments are conclusory and do not support the Motion to Vacate under § 2255.
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Furthermore, Vivar’s counsel’s decision not to challenge application of the 120 month
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mandatory minimum sentence does not constitute ineffective assistance of counsel because the
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Court informed Vivar at the change of plea hearing that a determination of whether to apply the
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safety valve was within the Court’s discretion. Vivar stated that he understood, and the Court
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subsequently determined that the safety valve does not apply, which led the Court to conclude that
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the mandatory minimum sentence of 120 months was effective. Like Vivar’s arguments on the
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merits of his conviction, counsel’s decision not to challenge the mandatory 120 month sentence
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does not support Vivar’s ineffective assistance of counsel claim. Accordingly, the Court declines
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to hold a hearing because Vivar’s § 2255 Motion conclusively shows that he is not entitled to
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relief.
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IV.
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Conclusion
IT IS THEREFORE ORDERED that Vivar’s Motion to Vacate under 28 U.S.C. § 2255
(Doc. #127) is DENIED.
IT IS FURTHER ORDERED that Vivar’s Motion for Leave to File Reply (Doc. #130) is
GRANTED.
IT IS FURTHER ORDERED that Vivar’s Motion for Reconsideration (Doc. #136) is
DENIED as moot.
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IT IS SO ORDERED.
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DATED this 18th day of September, 2015.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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