Dones-Vargas v. United States of America

Filing 32

ORDER granting 25 Motion to Dismiss for Failure to State a Claim; adopting 29 Report and Recommendation; overruling 31 Objection to Report and Recommendation.. Signed by U.S. District Judge Karen E. Schreier on October 5, 2021. (Sent to Orlando Dones-Vargas via US Postal Service) (DLC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ORLANDO DONES-VARGAS,

4:20-CV-04124-KES

Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING THE REPORT
AND RECOMMENDATION IN FULL
AND GRANTING THE RESPONDENT’S
MOTION TO DISMISS

Movant, Orlando Dones-Vargas, filed a motion under 28 U.S.C. ' 2255 to
vacate, set aside, or correct his sentence. Docket 1. 1 Respondent moved to
dismiss the action for failure to state a claim. Docket 25. Dones-Vargas
responded to the motion to dismiss. Docket 27. The matter was referred to a
United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and this court’s
October 16, 2014, standing order. The Magistrate Judge recommends that all
of Dones-Vargas’s claims be dismissed and that respondent’s motion to dismiss
be granted. Docket 29 at 30. Dones-Vargas makes multiple objections. Docket
31. For the following reasons, the court grants respondent’s motion to dismiss.

Within this opinion, the court cites to documents in Dones-Vargas’s civil
habeas case by citing the court’s docket number for that document. The court
will cite to “CR” when citing to documents filed in Dones-Vargas’s criminal case
found at United States v. Dones-Vargas, 4:17-CR-40086-KES-1.
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FACTUAL BACKGROUND
A. Criminal Case
Dones-Vargas was charged with conspiracy to distribute 500 grams or
more of a mixture containing methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. CR Docket 2. Attorney Rick Ramstad was appointed to
represent Dones-Vargas at his initial appearance, arraignment, and bond
hearing on September 18, 2017. CR Dockets 15, 16. Dones-Vargas entered a
plea of not guilty. CR Docket 15. Attorney Ryan Kolbeck entered his
appearance on behalf of Dones-Vargas on November 1, 2017, and Mr. Ramstad
withdrew from the case six days later. CR Dockets 20, 23. Mr. Kolbeck
represented Mr. Dones-Vargas up to and through his trial and direct appeal.
See CR Docket 122.
Later, a superseding indictment was filed, and it added one count of
possession with intent to distribute five grams or more of a mixture containing
methamphetamine in violation of 21 U.S.C. § 841(a)(1). CR Docket 36. DonesVargas pleaded not guilty to both counts in the superseding indictment. CR
Docket 39. Dones-Vargas’s case went to a jury trial on January 29, 2018,
where he was represented by Mr. Kolbeck. See CR Docket 59. The jury found
Dones-Vargas guilty on both counts. CR Docket 67.
Dones-Vargas’s draft PSR noted that he was not entitled to an
adjustment in his U.S. Sentencing Guidelines (USSG) offense level for
acceptance of responsibility because, “[p]ursuant to USSG § 3E1.1, comment.
(n.2), [Dones-Vargas] . . . put the government to its burden of proof at trial by
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denying the essential factual elements of guilt and was convicted.” See CR
Docket 73 at 7, ¶ 20. It also noted that he maintained his innocence even after
trial. Id. Dones-Vargas did not object to these findings. See CR Docket 76. The
final PSR also included these findings. CR Docket 82 at 7, ¶ 20. Dones-Vargas
did not raise any objections to the PSR’s recommendation that he not receive
an adjustment for acceptance of responsibility at his sentencing hearing. See
CR Docket 130. The guideline sentencing range for Dones-Vargas was 235-293
months’ imprisonment and five years’ supervised release. Id. at 51. DonesVargas continued to maintain his innocence at his sentencing hearing. Id. at
52. He was sentenced to 235 months’ imprisonment and five years’ supervised
release and received no downward adjustment for acceptance of responsibility.
See id. at 57.
Dones-Vargas appealed his conviction and sentence. CR Docket 117. He
raised one issue on direct appeal, and the Eighth Circuit Court of Appeals
affirmed his conviction and denied his claim on the merits. CR Docket 134
Now, Dones-Vargas raises three grounds in support of his motion under
§ 2255. Docket 1. The Magistrate Judge stated the claims were:
1. Dones-Vargas’s Sixth Amendment right
assistance of counsel was violated when

to

the

effective

a. Mr. Kolbeck failed to research and advise Dones-Vargas
about nolo contendere pleas and the possibility of entering
a plea of nolo contendere in his criminal case.
b. Mr. Kolbeck advised him to proceed to trial without first
investigating the facts, circumstances, and laws involved
in making that decision.

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c. Mr. Kolbeck did not diligently investigate, explore, or
attempt to negotiate a favorable plea agreement.
d. Mr. Kolbeck did not advise Dones-Vargas he had virtually
no chance of prevailing at trial considering the strength of
the government’s evidence.
2. Dones-Vargas’s Sixth Amendment right to the effective
assistance of counsel was further violated in the following ways:
a. Mr. Kolbeck failed to investigate or present available,
material, exculpatory evidence and testimony at trial that
would have demonstrated that a government’s witness was
lying and that the allegations of Dones-Vargas distributing
large amounts of methamphetamine were false.
b. Mr. Kolbeck failed to investigate or move for dismissal
based on lack of venue or move for change of venue.
c. Mr. Kolbeck failed to request appropriate jury instructions
and object to insufficient instructions.
d. Mr. Kolbeck failed to object to improper argument by the
prosecution and failed to request curative instructions for
the improper argument.
e. Mr. Kolbeck failed to investigate or present available
evidence and legal authority material to sentencing.
f. Mr. Kolbeck failed to object to unlawful, false, and
unreliable evidence used to determine the appropriate
guideline sentencing range.
g. Mr. Kolbeck failed to investigate and present the strongest
issues available to Dones-Vargas in his direct appeal.
h. Mr. Kolbeck represented Dones-Vargas despite a conflict of
interest.
3. Dones-Vargas’s conviction and sentence violate his First
Amendment rights to free speech and to petition, his Fourth
Amendment right to be free from unreasonable searches and
seizures, his Sixth Amendment due process rights, including his
rights to the assistance of counsel, to trial by jury, to confront
adverse witnesses, to present a defense, and to compulsory
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process, and his Eighth Amendment right to be free from cruel
and unusual punishment.
Docket 29 at 4-6.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
I.

Legal Standard
To establish ineffective assistance of counsel, a movant must meet the

two-pronged standard articulated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the [movant] must
show that counsel's performance was deficient.” Id. This “performance prong”
requires the movant to show that counsel's representation “fell below an
objective standard of reasonableness.” Id. at 688. To show deficiency, the
movant must show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth

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Amendment.” Id. at 687. This court must assess “whether counsel's assistance
was reasonable considering all the circumstances.” Id. at 688.
There is a “strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that is, the [movant] must
overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “Thus, a court deciding an actual
ineffectiveness claim 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.” Id. at 690. Ordinarily, the Eighth Circuit “consider[s] strategic
decisions to be virtually unchallengeable unless they are based on deficient
investigation[.]” Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006).
“Second, the [movant] must show that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. This “prejudice prong”
requires the movant to “show that 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. In other words, “[i]t is not
enough for the [movant] to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693. Thus, “[a]n 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.” Id. at 691. The
court need not determine deficiency before determining prejudice. Id. at 697.
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“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” Id.
II.

Objections to the Magistrate Judge’s Report and Recommendation
A. Objections to the Magistrate Judge’s Reliance on Haversat
Dones-Vargas raises several objections to the Magistrate Judge’s reliance

on United States v. Haversat, 22 F.3d 790 (8th Cir. 1994). Docket 31 at 9-11.
In Haversat, two defendants pleaded nolo contendere to the charge of
conspiring to fix prices. Haversat, 22 F.3d at 793. The defendants were denied
an acceptance of responsibility deduction under USSG § 3E1.1. Id. Although
the district court did declare that there was no acceptance of responsibility, it
noted that the question of acceptance of responsibility was “a moot question
and almost a theoretical question” because it departed downward for other
reasons. Id. at 798-99. The defendants argued that the district court did not
issue an actual ruling on the question of acceptance of responsibility and that,
if the Eighth Circuit remanded the case to the district court on other grounds
for resentencing, the district court should reconsider awarding them
acceptance of responsibility. Id. at 798.
The Eighth Circuit disagreed, finding that “[t]he record clearly indicates
that the district court denied a reduction for acceptance of responsibility[.]” Id.
at 799. The court then continued:
To the extent that [the defendants] have argued that the district
court erred in finding that they did not accept responsibility, we find
that the district court's decision was not clearly erroneous. Both
[defendants] pleaded nolo contendere—a plea which does not admit

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responsibility. Moreover, they have continued to minimize their role
in the conspiracy throughout the proceedings, even on appeal.
Id. The Magistrate Judge cited this excerpt in her determination that “a
downward adjustment for acceptance of responsibility is all but foreclosed by
the Eighth Circuit’s reasoning in Haversat.” Docket 29 at 17.
Dones-Vargas first argues that the Eighth Circuit denied a reduction for
acceptance of responsibility in Haversat under the law of the case doctrine.
Docket 31 at 9 (citing Marshall v. Anderson Excavating & Wrecking Co., 8 F.4th
700 (8th Cir. 2021)). He notes that immediately preceding the above excerpt,
the Eighth Circuit held, “We deny the request of [the defendants] to allow the
district court to reexamine the acceptance of responsibility question on
remand, as the district court already has denied such a reduction and its
holding will control on remand.” Haversat, 22 F.3d at 799.
Dones-Vargas’s argument appears to be that the Court of Appeals in
Haversat did not decide whether the district court erred in its finding on
acceptance of responsibility; instead, it deferred to the lower court’s finding on
the issue. The plain language of Haversat, however, holds otherwise. The
Eighth Circuit specifically found that the district court denied a reduction for
acceptance of responsibility and that “the district court’s decision was not
clearly erroneous.” Haversat, 22 F.3d at 799.
Dones-Vargas next argues that “when a fact is ‘not clearly erroneous,’
that means that there is evidence for the issue and against the issue and,
therefore, the lower court can not be wrong.” Docket 31 at 10. He cites In re
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Sealed Case (Sentencing Guidelines’ Safety Valve) for the proposition that
“[w]here there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Id. (quoting In re Sealed Case
(Sentencing Guidelines’ Safety Valve), 105 F.3d 1460, 1464, (D.C. Cir. 1997)).
Based on Sealed Case and his interpretation of the clear error standard,
Dones-Vargas contends that the court in Haversat must have found evidence
both for and against an acceptance of responsibility reduction and thus does
not stand for the proposition that acceptance of responsibility reductions are
not applicable to nolo contendere pleas. Id.
Dones-Vargas misunderstands the clearly erroneous standard. A finding
can be clearly erroneous even when there is some evidence to support it. See
Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011) (“A finding is clearly
erroneous when ‘although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’ ” (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985))). But that does not mean that the mere act of
reviewing a finding for clear error suggests that there is supporting evidence
for both sides. By finding the district court’s decision to be “not clearly
erroneous[,]” the court in Haversat in no way suggested that there existed
evidence contrary to the district court’s decision.
Dones-Vargas also argues that the court’s statement in Haversat—that a
defendant who enters a nolo contendere plea does not admit responsibility—
was merely dicta and not binding upon this court. Docket 31 at 10. He argues
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that because this statement was unnecessary to the decision, it was not
precedential. Id. (citing Fergin v. Westrock Co., 955 F.3d 725, 729 (8th Cir.
2020)). This argument fails for two reasons. First, the statement in question
was necessary to the decision. The court in Haversat concluded that the
district court properly found that the defendants were not entitled to a
reduction for acceptance of responsibility because their plea was one that did
not admit responsibility. Haversat, 22 F.3d at 799. Second, the statement in
question was a true description of a nolo contendere plea. A nolo contendere
plea “is tantamount to ‘an admission of guilt for the purposes of the case[.]’ ”
Lott v. United States, 367 U.S. 421, 426 (1961) (quoting Hudson v. United
States, 272 U.S. 451, 455 (1926)). “Unlike a plea of guilty, however, it cannot
be used against a defendant as an admission in a subsequent criminal or civil
case.” Fed. R. Crim. P. 11 advisory committee notes for the 1974 amendment.
Refusal to face the full consequences of a plea is refusal to take responsibility.
Even if Dones-Vargas were correct that Haversat does not stand for the
proposition that a defendant who enters a nolo contendere plea is not entitled
to a reduction for acceptance of responsibility, he still cannot show that he was
prejudiced by Mr. Kolbeck’s failure to discuss a nolo contendere plea with him.
Dones-Vargas would have needed both the prosecutor to pursue a nolo
contendere plea and the court to accept such a plea. See Fed. R. Crim. P.
11(a)(3). The court considers “the parties’ views and the public interest in the
effective administration of justice” in determining whether to accept a nolo

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contendere plea. Id. Dones-Vargas has made no showing that these factors
would have favored a nolo contendere plea.
At most, Dones-Vargas has shown that a nolo contendere plea was a
possibility and that, if his arguments about Haversat are correct, he would
have had some chance to be found to have accepted responsibility after
entering a nolo contendere plea. But a showing of prejudice requires a
“reasonable probability” that effective counsel would have achieved a different
outcome. Strickland, 466 U.S. at 694. Dones-Vargas does not meet this
burden, and his objections to the Magistrate Judge’s reliance on Haversat are
overruled.
B. Objection to Dismissal Under Federal Rule of Civil Procedure
12(b)(6)
Dones-Vargas argues that dismissal under Federal Rule of Civil
Procedure 12(b)(6) was improper. Docket 31 at 11. He claims that the standard
for a motion to dismiss under Rule 12(b)(6) is the same as the standard for
dismissal under Rule 4 of the Rules Governing Section 2255 Proceedings. Id.
This is incorrect. Dismissal under Rule 4 occurs when “it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief[.]” Rules Governing § 2255 Proceedings,
Rule 4. But a motion to dismiss under Rule 12(b)(6), which is considered after
the respondent answers the movant’s motion and the movant has had an
opportunity to reply, is appropriate when a pleading fails to contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on

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its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Dones-Vargas cites several cases to argue that dismissal under Rule 4 is
only appropriate when the allegations in a motion are “vague [or] conclusory[,]”
“palpably incredible[,]” or “patently frivolous or false.” Docket 31 at 11 (first
alteration in original) (citations omitted). He then claims that this standard
must also apply to Rule 12(b)(6) motions and argues that his motion is not
vague, conclusory, palpably incredible, or patently frivolous or false. Id. at 12.
But because different standards apply to dismissal under Rule 4 of the Rules
Governing Section 2255 Proceedings and dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, this argument holds no merit.
The Magistrate Judge found that Dones-Vargas did not meet the
standard to show ineffective assistance of counsel based on counsel’s failure to
discuss and pursue a nolo contendere plea and counsel’s causing DonesVargas to proceed to trial. Docket 29 at 12-27. The Magistrate Judge also
found that Dones-Vargas’s other claims were not supported by sufficient
allegations of fact. Id. at 27-29. Thus, Dones-Vargas’s claims failed to meet the
plausibility standard of Iqbal and his objection is overruled.
C. Objections Claiming that the Magistrate Judge’s Report and
Recommendation is Inconsistent with Dones-Vargas’s Allegations
and Supporting Arguments
Dones-Vargas argues that his claims are supported by his sworn factual
allegations, his verified exhibits, and his declaration in support of his § 2255
motion. Docket 31 at 13. Rather than make separate arguments for this
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objection, he “restates and incorporates by reference each and every argument
set forth above as objections to the Magistrate Report [and] Recommendation.”
Id. Because Dones-Vargas makes no new arguments supporting this objection,
the court treats this objection as a reiteration of his previous objections, and it
is overruled.
III.

Evidentiary Hearing
A court must order an evidentiary hearing “[u]nless the motion and the

files and records of the case conclusively show that the prisoner is entitled to
no relief[.]” 28 U.S.C. § 2255(b); see also Thomas v. United States, 737 F.3d
1202, 1206 (8th Cir. 2013) (“Evidentiary hearings . . . are preferred, and the
general rule is that a hearing is necessary prior to the motion's disposition if a
factual dispute exists.”). But a motion may be dismissed without a hearing if
“(1) the [movant]’s 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 (8th Cir. 1995)
(citing United States v. Rodriguez Rodriguez, 929 F.2d 747, 749-50 (1st Cir.
1991)).
Here, an evidentiary hearing is not required because Dones-Vargas’s
allegations, even if true, would not entitle him to relief. Dones-Vargas’s
arguments fail as a matter of law. Even if, despite Haversat, a nolo contendere
plea could still allow for the acceptance of responsibility, Dones-Vargas has
failed to show that there was a reasonable probability that he would have
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received a different outcome had Mr. Kolbeck advised him on and pursued a
nolo contendere plea. His other claims misstate the standard applied to Rule
12(b)(6) motions and fail to allege sufficient facts. Thus, Dones-Vargas’s
request for an evidentiary hearing is denied.
CERTIFICATE OF APPEALABILITY
When a district court denies a movant’s § 2255 motion, the movant must
first obtain a certificate of appealability before an appeal of that denial may be
entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This certificate
may be issued “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”
is one that proves “reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Stated differently, “[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 v. Norris, 133 F.3d
565, 569 (8th Cir. 1997). Dones-Vargas has not made a substantial showing
that his claims are debatable among reasonable jurists, that another court
could resolve the issues raised in his claims differently, or that a question
raised by his claims deserves additional proceedings. Thus, a certificate of
appealability is not issued.

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CONCLUSION
Thus, it is ORDERED
1. Dones-Vargas’s objections to the report and recommendation (Docket
31) are overruled.
2. The report and recommendation (Docket 29) is adopted in full as
supplemented herein.
3. Respondent’s motion to dismiss (Docket 25) is granted.
4. Dones-Vargas’s motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (Docket 1) is dismissed without an evidentiary
hearing.
5. A certificate of appealability is denied.
DATED October 5, 2021.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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