Bekteshi v. USA
Filing
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MEMORANDUM OPINION AND ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255), filed by Astrit Bekteshi. ORDERED that the motion to vacate, set aside or correct sentence is DENIED and Movant's case is DISMISSED with prejudice. It is further ORDERED. It is further ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 2/4/2016. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ASTRIT BEKTESHI, #41709-424
VS.
UNITED STATES OF AMERICA
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CIVIL ACTION NO. 4:14cv105
CRIM. NO. 4:09cr193(2)
MEMORANDUM OPINION AND ORDER
Movant Astrit Bekteshi, a prisoner confined
at CI NE Ohio Correction Center in
Youngstown, Ohio, proceeding with the assistance of counsel, filed the above-styled and numbered
motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
I. BACKGROUND
On June 28, 2005, the Chicago, Illinois, office of the Federal Bureau of Investigation (FBI)
initiated an investigation targeting an Albanian Organized Crime (AOC) group headed by Astrit
Bekteshi (Movant). The Bekteshi organization was identified as a highly organized drug distribution
organization dealing with hydroponic marijuana, ecstasy, and cocaine. The marijuana and ecstasy
were obtained, in part, from a Chinese Organized Crime group in Vancouver, Canada, then smuggled
into the United States. Early in the investigation of the Bekteshi Organization, agents learned that
the group was obtaining cocaine from suppliers in Texas, and possibly, California and Florida.
Movant’s organization also operated illegal video gaming devices supplied by an Italian organized
crime group.
Movant insulated himself from the “hands-on” aspects of the operation by using trusted
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Albanian associates.
The FBI in Chicago used wire and microphone intercepts during its
investigation. In spite of how careful Movant and his subordinates were in their communications,
investigations revealed that Movant was involved in numerous drug transactions involving large
dollar amounts, including one occurring in Frisco, Texas. Movant and eight co-defendants were
charged by Indictment on October 15, 2009. Count One charged Movant with conspiracy to possess
with intent to distribute cocaine, heroin, 3,4 methylenedioxymethamphetamine (ecstasy), or
marijuana, in violation of 18 U.S.C. § 846.
On November 15, 2011, Movant pleaded guilty to Count One pursuant to a written plea
agreement. Under Rule 11( c)(1)( C) of the Federal Rules of Criminal Procedure, Movant and the
Government agreed that the appropriate sentence was 135 months’ imprisonment.
Eight months after pleading guilty, Movant filed a motion to withdraw his guilty plea on
August 2, 2012. The court held a hearing on the motion. An interpreter was provided for Movant.
Movant claimed that he was pressured by other prisoners to enter a plea. He also said that his
counsel told him that if he went to trial, he could face a life sentence. Movant claims that he pleaded
guilty because he was scared and because he did not understand the rules and regulations. The court
denied the motion on October 5, 2012.
The presentence report calculated Movant’s sentencing guideline range to be 168 to 210
months’ imprisonment. This was based on a total offense level of 35, and a criminal history category
of I. At sentencing, an interpreter was provided. The presentence report was read to Movant in
Albanian, and he confirmed he understood it. He then confirmed that the report accurately reflected
his background. Movant’s counsel again asked to withdraw Movant’s plea because Movant said he
was not guilty. Counsel and Movant confirmed Movant’s understanding that he would not receive
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credit for acceptance of responsibility if he persisted in this posture.
The court accepted the findings of the presentence report, except that it found the offense
level to be 38, and the sentencing guideline range to be 235 to 293 months, based on Movant’s claim
that he was not guilty. The court accepted the plea agreement, and sentenced Movant to 135 months’
imprisonment pursuant to the written plea agreement and the Fed. R. Crim. P. 11(c)(1)( C)
agreement. After initially filing a notice of appeal, Movant then filed a motion to dismiss the appeal.
The United States Court of Appeals for the Fifth Circuit granted the motion, and dismissed the
appeal on August 9, 2013. Movant filed the instant motion on February 15, 2014.
In his § 2255 motion, Movant claims that he is entitled to relief because his counsel was
ineffective. Specifically, Movant asserts that his trial counsel was ineffective by (1) failing to move
for a downward departure; (2) failing to conduct a reasonable investigation; (3) failing to reasonably
communicate with Movant; and (4) failing to object to the presentence report. The Government filed
a Response, asserting the claims are without merit. Movant did not file a Reply.
II. § 2255 PROCEEDINGS
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction.
The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be
drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the
other.” United States v. Pierce, 959 F.2d 1297, 1300-01 (5th Cir. 1992). A collateral attack is
limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991).
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III. WAIVER IN MOVANT’S GUILTY PLEA
The Fifth Circuit has upheld the informed and voluntary waiver of post-conviction relief in
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d
463, 465 (5th Cir. 1995), the Fifth Circuit held that a waiver may not be enforced against a § 2255
movant who claims that ineffective assistance of counsel rendered that waiver unknowing or
involuntary. In United States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an
ineffective assistance of counsel claim raised in a § 2255 proceeding survives a waiver only when
the claimed assistance directly affected the validity of that waiver or the plea itself. More recently,
the Fifth Circuit noted that it has upheld § 2255 waivers except for when there is an ineffective
assistance of counsel claim that affects the validity of that waiver or the plea itself or when the
sentence exceeds the statutory maximum. United States v. Hollins, 97 F. App’x 477, 479 (5th Cir.
2004).
Signed Plea Agreement
A review of the record shows that Movant signed a plea agreement containing the following
waiver provision:
Except as otherwise provided herein, the defendant expressly waives the right to
appeal the conviction, sentence, fine and/or order of restitution or forfeiture in this
case on all grounds. The defendant further agrees not to contest the conviction,
sentence, fine and/or order of restitution in any post-conviction proceeding, included,
but not limited to a proceeding under 28 U.S.C. § 2255. The defendant, however,
reserves the right to appeal the following: (a) the failure of the Court, after accepting
this agreement, to impose a sentence in accordance with the terms of this agreement;
and (b) a claim of ineffective assistance of counsel that affects the validity of the
waiver or the plea itself.
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It also states:
I have read or had read to me this plea agreement and have carefully reviewed every
part of it with my attorney. I fully understand it and voluntarily agree to it.
Additionally, the plea agreement states:
The defendant has thoroughly reviewed all legal and factual aspects of this case with
defense counsel and is fully satisfied with defense counsel’s legal representation.
The defendant has received satisfactory explanations from defense counsel
concerning each paragraph of this plea agreement, each of the defendant’s rights
affected thereby, and the alternatives to entering a guilty plea. After conferring with
counsel, the defendant concedes guilt and has concluded that it is in the defendant’s
best interest to enter this agreement rather than proceeding to trial.
Finally, Movant stated in his plea agreement that the “plea of guilty is freely and voluntarily made
and is not the result of force, threats, or promises other than those set forth in this Agreement.”
Consequently, any allegation that the guilty plea was not knowingly or voluntarily made is
contradicted by Movant’s signed plea agreement.
Plea Hearing
A review of the record shows that, at Movant’s change of plea hearing, held on December
5, 2011, Movant said:
1.
His plea was voluntary, and he was pleading guilty because he was, indeed, guilty;
2.
He understood the charges against him and the elements of the charge;
3.
He understood the sentencing range;
4.
He understood that the sentence would be no less than ten years and no more than life
imprisonment;
5.
He understood how the Sentencing Guidelines might apply to his case;
6.
He understood the rights he was waiving by pleading guilty;
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7.
He understood the terms of his 11(c)(1)( C) agreement;
8.
He understood that he would probably be deported once he had served his sentence;
9.
He was not under the influence of drugs or alcohol that affected his mental
capabilities;
10.
His guilty plea was voluntary, and not the produce of any force, threat, or promise;
11.
He discussed the facts and the defenses of his case with counsel and is satisfied that
counsel fully considered his case;
12.
He affirmed that the written plea agreement contained the entire agreement
concerning his plea of guilty;
13.
He read the entire agreement, discussed it with counsel, and translated it into his
native language;
14.
He read the factual statement, translated it into his native language, and discussed it
fully with counsel, and agreed to everything contained in it;
15.
He was fully competent to understand the charge against him and plead guilty; and
16.
He was fully satisfied with the representation of his counsel.
See Transcript of Change of Plea Hearing, (dkt #269).
The court admonished Movant as to the charges against him. The court further explained the
rights Movant was giving up by pleading guilty to a felony. Movant stated that he understood the
rights that he was waiving. He also said that there had been no other promises made to him or
threats against him leading him to plead guilty. He said that he was pleading guilty voluntarily, of
his own free will, because he is guilty of the crime charged. Formal declarations in open court carry
with them a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621,
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1629, 52 L. Ed.2d 136 (1977). Although a defendant’s attestation of voluntariness at the time of the
plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United
States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1984).
Movant fails to show that, but for trial counsel’s advice, he would have taken his chances at
trial. Conclusory allegations and bald assertions are insufficient to support the motion. Ross v.
Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (“absent evidence in the record, a court cannot consider
a habeas petitioner’s bald assertions on a critical issue in his pro se petition (in state and federal
court), unsupported and unsupportable by anything else contained in the record, to be of probative
evidentiary value”); United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard,
691 F.2d 796, 799 (5th Cir. 1982). The Fifth Circuit has held that a defendant’s testimony at the plea
colloquy that no one attempted in any way to force him to plead guilty carries a strong presumption
of verity. United States v. Abreo, 30 F.3d 29, 31 (5th Cir. 1994). In cases where the record
establishes that the defendant understood the nature of the charge against him and the direct
consequences of his act, the rudimentary demands of a fair proceeding and a knowing, voluntary plea
are satisfied. Wright v. United States, 624 F.2d 557, 561 (5th Cir. 1980).
Consent to Administration of Guilty Plea
Additionally, on December 5, 2011, Movant signed a Consent to Administration of Guilty
Plea. In the consent, Movant stated that he understood his trial rights, and that by pleading guilty,
he knew he was giving up those rights – except for the right to counsel. Movant understood that by
pleading guilty, his immigration status may be affected and may lead to deportation. He affirmed
that he understood that the court will consult the Sentencing Guidelines in assessing a sentence, but
that the court is not bound by the guidelines. Movant affirmed that he was aware that the court is
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not bound by any agreements between himself and the Government. He also understood that only
the United States District Judge will determine his sentence.
Furthermore, Movant stated that he was making his plea of guilty freely, and was not forced
to plead guilty. He affirmed that no promises had been made to him other than what was contained
in the plea agreement. He stated that he was making the plea of guilty because he was guilty.
Movant said he fully understood the charges, including the statutory minimum and maximum
penalties, as well as terms related to supervised release, special assessments, forfeiture, and
restitution. He said that he fully understood the plea agreement and has no reservations or questions
concerning it.
Movant stated that he understood his appeal rights and that those rights could be limited by
the terms of his plea agreement. He said that he realized that he may not appeal his plea of guilty
or withdraw his plea of guilty if his sentence is greater than what he originally believed or what was
told to him by counsel. He represented that he was not under the influence of any substances or
medications and that he was fully competent to enter a plea before the court. He also said that if he
had any questions, he knew he could freely consult with his attorney. Movant represented that he
was fully satisfied with his attorney’s representation. He affirmed that the Factual Statement that
he signed was true and correct, and that he had reviewed it and found no material errors in what he
represented to the court. He understood that his statements made in the consent were made under
the penalty of perjury. Any allegation that the plea was not knowingly or voluntarily made is
contradicted by Movant’s signed consent.
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Findings of Facts
The magistrate court entered Findings of Facts on December 5, 2011. Based on the hearing
in which Movant pleaded guilty, the court found that Movant knowingly and voluntarily consented
to the administration of the Guilty Plea and Allocution. It also found that Movant and the
Government entered into a plea agreement filed and disclosed in open court pursuant to Fed. R.
Crim. P. 11(c)(2) and 11(c)(1)( C). It further found that Movant was fully competent and capable
of entering an informed plea, that he was aware of the nature of the charges and the consequences
of the plea, and that the plea of guilty was knowingly and voluntarily made, supported by an
independent basis in fact containing each of the essential elements of the offense. Any allegation
that the guilty plea was not knowingly or voluntarily made is further contradicted by the Findings
of Facts.
Factual Statement
Finally, Movant signed a Factual Statement on December 5, 2011. In it, he admitted that he
and one or more persons made an agreement to distribute or possess controlled substances with the
intent to distribute them. He knew the unlawful purpose of the agreement, but joined in it with the
intent to further it. He specifically conceded to participating in the following acts, among others:
Beginning in or about 2005, and continuing until in or about 2009, Bekteshi
conspired with others to distribute or possess with intent to distribute at least 15
kilograms but less than 50 kilograms of a mixture or substance containing cocaine
and at least 100 kilograms or more of a mixture or substance containing a detectable
amount of marijuana in the Eastern District of Texas and elsewhere;
The defendant Bekteshi admits he was an organizer or leader and the criminal
activity involved five or more participants and was otherwise extensive;
Bekteshi was a Chicago based narcotics trafficker;
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On May 25, 2007, Bekteshi possessed with the intent to distribute 26 pounds of
marijuana;
In or about June of 2008, Bekteshi conspired to purchase twenty-three (23) kilograms
of cocaine;
On June 5, 2008, $285,000 United States currency belonging to Bekteshi was seized
by law enforcement. This currency was intended for investment in cocaine;
On July 1, 2008, Bekteshi and others met to discuss purchases of cocaine from a
Dallas, Texas source. Bekteshi supervised others at this meeting. At the meeting,
it was discussed that the Chicago-based conspirators would routinely need 15-150
kilograms of cocaine. The first transaction was to be for nineteen (19) kilograms of
cocaine;
On July 5, 2008, co-conspirators possessed $300,000 United States currency that was
sent to the Dallas, Texas area by Bekteshi for investment in cocaine.
Any allegation that the plea was not knowingly or voluntarily made is contradicted by Movant’s
signed Factual Statement.
Conclusion - Waiver in Movant’s Guilty Plea
In sum, the court found that Movant, after consultation with counsel, knowingly and
voluntarily pleaded guilty to the charges. It also found that Movant was fully competent and capable
of entering an informed plea, that he was aware of the nature of the charges and the consequences
of the plea, and that his guilty plea is a knowing and voluntary plea supported by an independent
basis in fact containing each of the essential elements of the offenses. Any allegation that Movant’s
plea was not knowingly or voluntarily made is contradicted by his signed plea agreement, the plea
hearing, the consent, the findings of fact, and the factual statement. Movant fails to show that he
did not understand the nature of a constitutional protection that he was waiving or that he had “such
an incomplete understanding of the charges against him that this plea cannot stand as an admission
of guilt.” James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).
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In light of the waiver contained in Movant’s knowing and voluntary plea agreement, for the
court to consider his claims raised in his motion filed pursuant to 28 U.S.C. § 2255, Movant must
allege that the court failed to impose a sentence in accordance with the terms of the agreement or that
ineffective assistance of counsel affects the validity of his waiver or plea itself. Movant does not
allege that the court failed to impose a sentence in accordance with the agreement.
However,
because Movant’s ineffective assistance of counsel claims could arguably affect the validity of the
waiver and plea itself, the court will examine them.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Movant asserts that trial counsel was ineffectiveness in numerous instances.
Legal Standard
A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
counsel must prove his entitlement to relief by a preponderance of the evidence. James, 56 F.3d at
667. In order to succeed on a claim of ineffective assistance of counsel, a movant must show that
“counsel’s representation fell below an objective standard of reasonableness,” with reasonableness
judged under professional norms prevailing at the time counsel rendered assistance. Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L. Ed.2d 864 (1984). The standard
requires the reviewing court to give great deference to counsel’s performance, strongly presuming
counsel exercised reasonable professional judgment. Id., 466 U.S. at 690, 104 S. Ct. at 2066. The
right to counsel does not require errorless counsel; instead, a criminal defendant is entitled to
reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981); Rubio v. Estelle,
689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d 279 (5th Cir. 1984).
Secondly, the movant “must show that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068. Movant must “affirmatively prove,” not just allege, prejudice. Id., 466
U.S. at 693, 104 S. Ct. at 2067. If he fails to prove the prejudice component, the court need not
address the question of counsel's performance. Id., 466 U.S. at 697, 104 S. Ct. at 2069.
The duty of defense counsel to a defendant who desires to enter a plea of guilty is to ascertain
that the plea is voluntarily and knowingly made.
Diaz, 733 F.2d at 376. The two-prong test
Strickland test applies to cases involving guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
366, 370, 88 L. Ed.2d 203 (1985). A movant must show that he did not understand the nature of
a constitutional protection he was waiving or that he had “such an incomplete understanding of the
charges against him that this plea cannot stand as an admission of guilt.” James, 56 F.3d at 666.
Thus, if a defendant understands the nature of the charges against him and the consequences of his
plea, yet voluntarily chooses to plead guilty, the plea must be upheld on federal review. Diaz v.
Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983).
If a Movant challenges his guilty plea, there must be independent indicia of the likely merit
of his contentions, and mere contradictions of his statements at the guilty plea will not carry his
burden. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). The validity of a guilty plea is a
question of law and will be upheld on habeas review if entered into knowingly, voluntarily, and
intelligently. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
Failure to Move for Downward Departure
Here, Movant claims that counsel was ineffective for failing to move for a downward
departure. Specifically, he contends that trial counsel should have moved for a downward departure
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at sentencing based on Movant’s “precarious position of serving an extended, second sentence in
an immigration facility subsequent to serving his period of incarceration.” Movant asserts counsel
should have asked for the downward departure based on Movant’s status as a deportable alien, his
cultural assimilation, and the hardship his deportation will cause his family.
Failure to Move for Downward Departure - Deportable Alien
In support of Movant’s claim concerning his status as a deportable alien, Movant relies on
Moreno v. United States, 2007 WL 2712482 (N.D. Tex. Sept. 17, 2007). The Moreno court noted
that a defendant’s status as a deportable alien could be considered as a factor for a downward
departure based on the possible extra time in custody that the defendant might serve at an
immigration facility. Id. at 2. The court then held that Moreno failed to meet his burden of proof
because he failed to show that the trial court “would have exercised its discretion to depart
downward.” Id. at 2-3 (“Movant’s own speculations about the sentencing phase of the case are not
sufficient to make a prima facie showing that counsel could have done something [that] would have
substantially changed his sentence.”).
In the instant case, Movant fails to present any evidence, from the record or otherwise, to
show that the court would have considered departing downward based on Movant’s status as a
deportable alien. Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief.
Ross, 694 F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. Movant fails to show
deficient performance or that there is a reasonable probability that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068. Furthermore, Movant received the 135-month sentence for which he
bargained pursuant to Fed. R. Crim. P. 11(c)(1)( C). This issue is without merit.
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Failure to Move for Downward Departure - Cultural Assimilation
Movant also claims that counsel should have argued for a downward departure based on
cultural assimilation. He relies on United States v. Rodriguez-Montelongo, 263 F.3d 429, 432-33
(5th Cir. 2001). Although the court there noted that cultural assimilation is a permissible basis for
a downward departure, it held that the defendant’s situation must be atypical or extraordinary. Id.
at 433; see also Koon v. United States, 518 U.S. 81, 96, 116 S. Ct. 2035, 2045, 135 L. Ed.2d 392
(1996) (circumstances must exist that take the defendant’s case outside the “heartland” of cases
contemplated by the guidelines and that such departures not mentioned in the guidelines will be
“highly infrequent”).
Movant fails to present any evidence, from the record or otherwise, to show that his case is
atypical or extraordinary. The record shows that Movant worked as a mechanic and owned and
worked at a coffee shop. He said that he completed the Eighth Grade in Albania, and did not further
his education in the United States. The record does not show Movant’s participation in the
community or any religious or charity affiliations. Movant’s claim is conclusory, and as such, is
insufficient to entitle a habeas corpus petitioner to relief. Ross, 694 F.2d at 1011; Woods, 870 F.2d
at 288; Schlang, 691 F.2d at 799. He fails to show deficient performance or that there is a
reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Furthermore,
Movant received the 135-month sentence for which he bargained pursuant to Fed. R. Crim. P.
11(c)(1)( C). This issue is without merit.
Failure to Move for Downward Departure - Hardship on Family
Movant claims that counsel should have argued for a downward departure based on the
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hardship his family would face if he was deported. In United States v. Rodriguez-Montelongo, 256
F. Supp.2d 917 (E.D. Wis., 2003), the court noted that this is a permissible basis for a downward
departure. In that case, a downward departure was warranted because the defendant had moved to
the United States when he was less than one year old, had never gone back to Mexico, and had no
experience living in Mexico. Id. at 920. The court also considered that almost all of the defendant’s
family lived in the United States – his mother, his siblings, his wife, and his children. Id.
In this case, the record shows that Movant came to the United States as an adult. His English
is limited. His wife is Albanian although she now lives in the United States. His mother and
siblings still live in Albania, and he reports having good relationships with them. Movant fails to
present any evidence, from the record or otherwise, to show that the court would have departed
downward based on Movant’s family status. Conclusory claims are insufficient to entitle a habeas
corpus petitioner to relief. Ross, 694 F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at
799. Movant fails to show deficient performance or that there is a reasonable probability that, but
for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Furthermore, he received the 135-month sentence
for which he bargained pursuant to Fed. R. Crim. P. 11(c)(1)( C). This issue is without merit.
Failure to Investigate
Movant next claims that trial counsel was ineffective in several instances for failing to
conduct a reasonable investigation. Trial counsel must engage in a reasonable amount of pretrial
investigation, and “at a minimum, . . . interview potential witnesses and . . . make an independent
investigation of the facts and circumstances of the case.” Nealy v. Cabana, 764 F.2d 1173, 1177 (5th
Cir. 1985). A defendant who alleges a failure to investigate must allege with specificity what the
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investigation would have revealed and how it would have altered the outcome of the trial. Gray v.
Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982).
Failure to Investigate - Abandoned Defense Efforts
Movant claims that his assertions of innocence “were never thoroughly investigated and that
his attorney instead abandoned any defense efforts leaving Bekteshi without any choice, but to enter
a guilty plea.” However, Movant fails to present any evidence, from the record or otherwise, to show
that his counsel’s alleged failure to investigate affected the outcome of his case. He provides no
specifics as to what counsel would have found had he investigated further. Movant’s claim is
conclusory, and as such, is insufficient to entitle a habeas corpus petitioner to relief. Ross, 694 F.2d
at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. Movant fails to show deficient
performance or that there is a reasonable probability that, but for counsel’s alleged unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. Furthermore, Movant said at his plea hearing that he was fully satisfied with counsel and
that counsel had fully considered his case and any defenses to the charges. He also said that he was
guilty, and that pleading guilty is in his best interest. This issue is meritless.
Failure to Investigate - Counsel Prevented Movant from Defending Himself
Movant next claims that counsel was ineffective when he did not allow Movant to defend
himself to investigators. However, Movant fails to present any evidence, from the record or
otherwise, to show that his counsel’s alleged failure to allow Movant to refute accusations affected
the outcome of his case. He provides no specifics as to how he would have supported a claim of
innocence. More importantly, he presents no evidence to show that there is a reasonable probability
that, but for counsel’s alleged unprofessional performance, the result of the proceedings would have
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been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Movant’s claim is conclusory, and
as such, is insufficient to entitle a habeas corpus petitioner to relief.
Ross, 694 F.2d at 1011;
Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. Movant fails to show deficient performance or
that there is a reasonable probability that, but for counsel’s alleged unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Furthermore, Movant admitted to the facts of the case in the factual resume, and admitted to the facts
at his plea hearing. He also received the sentence for which he bargained - 135 months. This issue
is without merit.
Failure to Investigate - Counsel Did not Attend Probation Interview
Movant claims that counsel’s failure to attend the interview with the probation officer and
bring an interpreter resulted in the presentence report’s assignment of a four-point enhancement for
his leadership role in the conspiracy. A review of the record shows that Movant admitted to his
leadership role in the factual resume. He also admitted this at the plea hearing where both counsel
and an interpreter were present. When the presentence report was read to Movant in Albanian at
sentencing, he confirmed that it was accurate.
Movant’s claim is controverted by the record. Additionally, his claim is conclusory, and as
such, is insufficient to entitle a habeas corpus petitioner to relief. Ross, 694 F.2d at 1011; Woods,
870 F.2d at 288; Schlang, 691 F.2d at 799. Movant fails to show deficient performance or that there
is a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Furthermore,
Movant admitted to the facts of the case in the factual resume, and admitted to the facts at his plea
hearing. He also received the 135-month sentence for which he bargained. This issue is meritless.
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Failure to Investigate - Deportation Consequences
Movant claims counsel was ineffective for failing to investigate the deportation
consequences. A review of the record shows that the court informed Movant that he would probably
be deported if he entered a plea of guilty. Movant said that he understood. He fails to present any
evidence showing what counsel would have discovered had he investigated further. He also fails
to show that the outcome of the case would have been different if counsel had investigated further.
Movant fails to show deficient performance or that there is a reasonable probability that, but for
counsel’s alleged unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Furthermore, Movant told Probation that he had
received political asylum in the United States. Thus, he cannot show prejudice. Id. This issue is
without merit.
Failure to Investigate - Failing to File Sentencing Memo with Mitigating Factors
Movant asserts that counsel was ineffective for failing to file a sentencing memorandum
outlining mitigating factors for the court’s consideration. Again, Movant fails to present any
evidence showing that a sentencing memorandum would have altered the outcome of his case. The
sentence that he bargained for and received - 135 months - was considerably lower than the guideline
sentencing range. Movant’s claim is conclusory; thus, it is insufficient to entitle him to relief. Ross,
694 F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. He fails to show deficient
performance or that there is a reasonable probability that, but for counsel’s alleged unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. Furthermore, Movant admitted to the facts of the case in the factual resume, and
admitted to the facts at his plea hearing. The court sentenced him to 135 months’ imprisonment as
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reflected in the Rule 11 agreement. This issue is without merit.
Failure to Effectively Communicate
Movant contends that his counsel was ineffective for failing to have an interpreter present
at their “attorney-client” meetings. He asserts that he could not properly assist counsel in the defense
of his case because of the language barrier. He claims that he did not understand that he would lose
the credit for acceptance of responsibility when he moved to withdraw his guilty plea.
The record shows that Movant stated at his plea hearing that he was fully satisfied with his
counsel and with counsel’s legal representation. He agreed that counsel had fully considered the
facts of his case and any possible defenses to the charges. Movant confirmed that the facts stated
in the Factual Statement were true and correct. The record also shows that Movant understood that
he would lose the credit for acceptance of responsibility if he persisted in his motion to withdraw his
guilty plea. Moreover, the sentence he bargained for and received - 135 months - is less than what
he would have received had the court sentenced him within the sentencing guideline range calculated
by the presentence report (168 - 210 months), which included a three-point reduction for acceptance
of responsibility.
Movant fails to show deficient performance or that there is a reasonable probability that, but
for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Furthermore, he cannot show prejudice because
Movant received the 135-month sentence for which he bargained, which is less than the sentencing
guideline range. This issue is without merit.
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Failure to Object
Finally, Movant claims that counsel was ineffective for failing to object to the four-point
upward adjustment for his leadership role in the charged offense. Trial counsel’s failure to object
does not constitute deficient representation unless a sound basis exists for objection. See Emery v.
Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile or meritless objection cannot be grounds for a
finding of deficient performance). Even with such a basis, however, an attorney may render effective
assistance despite a failure to object when the failure is a matter of trial strategy. See Burnett v.
Collins, 982 F.2d 922, 930 (5th Cir. 1993) (noting that a failure to object may be a matter of trial
strategy as to which courts will not second-guess counsel). To succeed on such a claim, a petitioner
must show that the trial court would have sustained the objection and that it would have actually
changed the result of his trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to make
frivolous objections does not cause counsel’s performance to fall below an objective level of
reasonableness. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998). On habeas review,
federal courts do not second-guess an attorney’s decision through the distorting lens of hindsight,
but rather, the courts presume that counsel’s conduct falls within the wide range of reasonable
professional assistance and, under the circumstances, that the challenged action might be considered
sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Movant asserts that counsel was ineffective for failing to object to the four-point adjustment
for his leadership role. Specifically, Movant claims that, had counsel objected to the four-point
adjustment for his leadership role in the offense, his sentencing guideline range would only have
been 105-135 months’ imprisonment. The court notes that the sentence for which Movant
bargained and received is within that range - 135 months. Accordingly, Movant cannot show
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prejudice even if he could show deficient performance. He also has not shown that the trial court
would have sustained the objection and that it would have changed the result of his trial. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. Movant fails to show deficient performance or that there is a
reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different. Id. This issue is without merit.
VI. CONCLUSION
The court has concluded that Movant’s guilty plea was a knowing and voluntary plea. It has
also concluded that Movant’s ineffective assistance of counsel claims are without merit and do not
affect the validity of the waiver or plea itself. Consequently, the issues raised in his § 2255 motion
are waived. Henderson, 411 U.S. at 267, 93 S. Ct. at 1608 (a knowing and voluntary guilty plea
waives all nonjurisdictional deprivations that occurred prior to the plea). Even if they were not
waived, Movant fails to prove that there is a reasonable probability that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
.
at 694, 104 S. Ct. at 2068. Accordingly, it is
ORDERED that the motion to vacate, set aside or correct sentence is DENIED and
Movant’s case is DISMISSED with prejudice. It is further
ORDERED that all motions not previously ruled on are hereby DENIED.
SIGNED this 4th day of February, 2016.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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