Balenti v. USA

Filing 29

MEMORANDUM DECISION AND ORDER DENYING IN PART PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE - re 1 Motion to Vacate/Set Aside/Correct Sentence (2255)- It is thereforeORDERED that Petitioner's Motion to V acate, Set Aside, or Correct Sentence (Docket No. 1) is DENIED in part as set forth above. ( Evidentiary Hearing set for 10/7/2024 at 09:30 AM in Rm 8.300 before Judge Ted Stewart.) on Petitioner's claim of ineffective assistance related to counsels failure to file an appeal. See Order for details. Signed by Judge Ted Stewart on 9/25/24. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MICHAEL RICHARD BALENTI,

MEMORANDUM DECISION AND
ORDER DENYING IN PART
PETITIONER’S MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE

Plaintiff,
v.
UNITED STATES OF AMERICA,

Case No. 2:19-CV-307 TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on a Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255. Petitioner raises five claims of ineffective assistance of counsel
and a substantive claim for the purpose of preserving the issue. For the reasons discussed, the
Court will hold an evidentiary hearing on one of Petitioner’s ineffective assistance claims and
deny the remaining claims.
I. BACKGROUND
Petitioner was charged with possession of methamphetamine with intent to distribute and
possession of heroin with intent to distribute. Petitioner pleaded guilty to the methamphetamine
count. In exchange for his guilty plea, the United States agreed to forego the filing of a
sentencing enhancement under 21 U.S.C. § 851, which would have subjected Petitioner to
increased mandatory penalties.
A Presentence Report was prepared in anticipation of sentencing. The Presentence
Report’s author concluded that Petitioner qualified as a career offender based on his prior drug
convictions in California. Petitioner objected to the career offender classification, but the Court
1

overruled his objection. The Court sentenced Petitioner to 144 months’ custody, a significant
downward variance from the guideline range. Petitioner did not file a direct appeal.
II. DISCUSSION
28 U.S.C. § 2255(a) provides,
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon 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.
Petitioner’s claims are based on alleged ineffective assistance of counsel. The Supreme
Court has set forth a two-pronged test to guide the Court in making a determination of ineffective
assistance of counsel. “To demonstrate ineffectiveness of counsel, the defendant must generally
show that counsel’s performance fell below an objective standard of reasonableness, and that
counsel’s deficient performance was prejudicial.” 1 To establish prejudice, Petitioner “must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 2
A court is to review Petitioner’s ineffective-assistance-of-counsel claim from the
perspective of his counsel at the time he or she rendered the legal services, not in hindsight. 3 In
addition, in evaluating counsel’s performance, the focus is not on what is prudent or appropriate,

1

United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
2

Strickland, 466 U.S. at 694.

3

Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).
2

but only what is constitutionally compelled. 4 Finally, “[t]here is a strong presumption that
counsel provided effective assistance, and a section 2255 defendant has the burden of proof to
overcome that presumption.” 5
A.

SUPPRESSION
Petitioner first argues that his plea was invalid because counsel incorrectly advised him

that there were no successful grounds for suppression. Petitioner argues that the warrants
obtained by law enforcement were obtained in violation of Federal Rule of Criminal Procedure
41 and law enforcement agents searched beyond the scope authorized by the warrants. Despite
Petitioner’s contention that counsel “overlooked” 6 the suppression issues, the record makes clear
that counsel recognized and carefully analyzed the issue. Counsel spent a considerable portion of
the change of plea hearing discussing potential Fourth Amendment issues. 7 After conducting
research and discussing the issue with Petitioner and his co-counsel, counsel concluded that there
was no binding Tenth Circuit authority on point. 8 Counsel further identified intervening causes
and the good faith exception as potential barriers to a successful suppression motion. 9 Counsel
also noted the benefit Petitioner received in pleading guilty with the government agreeing not to

4

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).

5

United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (quoting United States
v. Williams, 948 F. Supp. 956, 960 (D. Kan. 1996)).
6

Docket No. 1, at 1.

7

Case No. 2:16-CR-167 TS, Docket No. 72, at 9–12.

8

Id. at 10–11.

9

Id. at 11.
3

file an information under 21 U.S.C. § 851. 10 With all of this then in mind, counsel specifically
confirmed with Petitioner that he was pleading guilty voluntarily.11
Petitioner contends that counsel’s analysis of the suppression issues was incorrect, but
fails to point to binding authority on these specific issues. Given that “[t]he strong presumption
in favor of attorney competence assumes that counsel makes a strategic evaluation after
considering the relevant costs and benefits of certain actions,” that “the case law is not settled in
this Circuit,” and that a suppression motion “could have harmed” Petitioner if the government
withdrew its concession, the Court cannot conclude that counsel’s performance was deficient. 12
Instead, the record confirms that counsel’s advice was given after thorough research and
consideration of the issues. An “attorney’s decision not to file all motions requested by his
clients [is] not ineffective assistance of counsel. Effective assistance ‘does not demand that every
possible motion be filed, but only those having a solid foundation.’” 13 The conclusion that
Petitioner received effective assistance of counsel is further bolstered by the fact that Petitioner
was represented by two counsel, only one of whom Petitioner asserts was ineffective. 14
Therefore, this claim fails.

10

Id. at 12.

11

Id.

12

United States v. Holloway, 939 F.3d 1088, 1103–1104 (10th Cir. 2019).

13

United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir. 1985) (quoting United States
v. Crouthers, 669 F.2d 635, 643 (10th Cir. 1982)).
14

United States v. Dunfee, 821 F.3d 120, 128 (1st Cir. 2016) (“Where, as here, the
defendant was represented by multiple attorneys, an ineffective assistance challenge is
particularly difficult to mount.”).
4

B.

CAREER OFFENDER
Petitioner next argues that counsel was ineffective for not arguing that his prior

California convictions were not “felony drug offenses” as defined by 21 U.S.C. § 802(44) or
“controlled substance offenses” under USSG § 4B1.2. Had counsel done so, Petitioner contends,
he would not have pleaded guilty or faced a heightened guideline range.
The Tenth Circuit has stated that “the failure to object to the legally erroneous imposition
of an enhancement under the Sentencing Guidelines constitutes ineffective assistance.” 15
Therefore, to establish that his counsel was deficient, Petitioner must show that his base offense
level was incorrectly calculated. To do so, he must establish that his prior convictions were
“facially insufficient” to satisfy the definition of a controlled substance offense under the
Sentencing Guidelines. 16
Petitioner argues that his state convictions are not categorically a controlled substance or
felony drug offense because California defines methamphetamine more broadly than federal law.
More particularly, Petitioner argues that federal law is limited to one kind of methamphetamine
isomer—the optical isomer—while California law is not so limited and includes geometric
isomers.

15

United States v. Sims, 218 F. App’x 751, 753 (10th Cir. 2007) (citing Jansen v. United
States, 369 F.3d 237, 244 (3d Cir. 2004)).
16

See United States v. Kissick, 69 F.3d 1048, 1056 (10th Cir. 1995), abrogated on other
grounds by United States v. Horey, 333 F.3d 1185, 1187–88 (10th Cir. 2003) (“An attorney’s
failure to challenge the use of a prior conviction to classify the defendant as a career offender
when that prior conviction is facially insufficient to satisfy the definition of a ‘controlled
substance offense’ under USSG § 4B1.2 therefore constitutes deficient performance under
Strickland.”).
5

The Ninth Circuit found this reasoning persuasive in Lorenzo v. Sessions. 17 However,
that decision was withdrawn and replaced with an unpublished decision. 18 It appears that this
was done, in large part, because geometric isomers in methamphetamine do not exist. 19 After
Lorenzo, the Ninth Circuit upheld a district court’s factual determination that geometric isomers
in methamphetamine do not exist. 20 “Because geometric isomers of methamphetamine are
impossible, there exists ‘no realistic probability’ that [the defendant’s] methamphetamine statute
of conviction will be used to prosecute someone in connection with geometric isomers of
methamphetamine.” 21 This Court has reached the same conclusion when addressing a similar
argument under Utah law. 22 Therefore, by failing to raise this issue, Petitioner’s counsel
performance was not deficient. Counsel is not required to raise a meritless issue. 23
C.

FAILURE TO FILE AN APPEAL
Petitioner next argues that counsel was ineffective for failing to file an appeal on his

behalf. The Supreme Court has “long held that a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a manner that is professionally

17

902 F.3d 930 (9th Cir. 2018).

18

Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019).

19

Id. at 485.

20

United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1151 (9th Cir. 2020).

21

Id. at 1154 (quoting Moncrieffe v. Holder, 569 U.S. 184, 206 (2013)). To fend off
future issues of this nature, the Ninth Circuit held, “as a matter of law, that California’s
definition of methamphetamine is a categorical match to the definition under the federal CSA.”
Id. at 1154 n.5.
22

Babcock v. United States, No. 2:18-CV-819 TS, 2020 WL 30345, at *9 (D. Utah Jan. 2,
2020), aff’d, 40 F.4th 1172 (10th Cir. 2022).
23

See United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006).
6

unreasonable.” 24 In such cases, prejudice is presumed. 25 This is true even when a defendant has
waived his appeal rights. 26 “Under such circumstances a defendant is entitled to a belated appeal
without showing the appeal to have merit.” 27
In the case of a defendant who does not instruct counsel to file an appeal, the Court must
determine “whether counsel in fact consulted with the defendant about an appeal.” 28 To
adequately consult a defendant, counsel must advise “the defendant about the advantages and
disadvantages of taking an appeal, and mak[e] a reasonable effort to discover the defendant’s
wishes.” 29 “If counsel has consulted with the defendant, the question of deficient performance is
easily answered: Counsel performs in a professionally unreasonable manner only by failing to
follow the defendant’s express instructions with respect to an appeal.” 30
The Supreme Court has declined to impose “a bright-line rule that counsel must always
consult with the defendant regarding an appeal.” 31 Instead, the Court has held that counsel “has a
constitutionally imposed duty to consult with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want to appeal (for example, because there are

24

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).

25

Id. at 484.

26

Garza v. Idaho, 586 U.S. 232, 237 (2019).

27

United States v. Parker, 720 F.3d 781, 786 (10th Cir. 2013).

28

Flores-Ortega, 528 U.S. at 478.

29

Id.

30

Id.

31

Id. at 480.
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nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.” 32
In making this determination, the Court “must take into account all the information
counsel knew or should have known.” 33 “[A] highly relevant factor in this inquiry will be
whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the
scope of potentially appealable issues and because such a plea may indicate that the defendant
seeks an end to judicial proceedings.” 34 In cases where a defendant pleads guilty, “the court must
consider such factors as whether the defendant received the sentence bargained for as part of the
plea and whether the plea expressly reserved or waived some or all appeal rights.” 35 Further, “a
sentencing court’s clear explanation of appeal rights to a defendant may substitute for counsel’s
failure to consult about an appeal.” 36
Petitioner states that he “desired” to challenge the Court’s career offender ruling on
appeal. However, he does not state whether he requested counsel file an appeal or whether he
expressed his desire to appeal to counsel. Given the significance of the career offender
enhancement, it seems likely that counsel would believe that a rational defendant would want to
appeal thereby triggering the duty to consult. The record contains no evidence about whether

32

Id.

33

Id.

34

Id.

35

Id.

36

Parker, 720 F.3d at785 n.3; see also Flores-Ortega, 528 U.S. at 479–80 (“Or, for
example, suppose a sentencing court’s instructions to a defendant about his appeal rights in a
particular case are so clear and informative as to substitute for counsel’s duty to consult. In some
cases, counsel might then reasonably decide that he need not repeat that information.”).
8

counsel consulted Petitioner about an appeal or whether that consultation was adequate. Because
the record does not “conclusively show that the prisoner is entitled to no relief,” 37 an evidentiary
hearing on this issue is required.
D.

DOWNWARD DEPARTURE
Petitioner next argues that counsel failed to effectively seek a downward departure based

on overrepresentation of criminal history. Petitioner acknowledges that counsel did make an
overrepresentation argument but argues that he failed to point to certain facts that would have
supported the argument. The Court cannot conclude that counsel’s performance was deficient.
Counsel made a number of arguments in support of a lesser sentence, including an argument that
Petitioner’s criminal history was overrepresented. The fact that counsel chose not to highlight
certain facts that were already contained in the Presentence Report does not render his
performance deficient. Similarly, there is nothing to suggest that Petitioner would have a lesser
sentence had counsel emphasized these known facts. Therefore, this claim is denied.
E.

CAREER OFFENDER
Petitioner next argues that the Court’s application of the career offender enhancement

was erroneous. Petitioner makes this argument to preserve for further appeal. Based on the
Court’s prior ruling and the analysis above, there is no need to revisit this issue and the Court
declines to do so.

37

28 U.S.C. § 2255(b).
9

F.

PARAGRAPHS 52, 54, AND 56 OF THE PRESENTENCE REPORT
Petitioner’s final argument is that counsel should have insisted that the arrests identified

in paragraphs 52, 54, and 56 be designated “failure to file” rather than “disposition unknown.”
The record shows that counsel did just that, and more. Counsel requested the “disposition
unknown” provision be removed from Paragraph 52. 38 He further requested that Paragraphs 54
and 56 be removed in their entirety. 39 Counsel’s performance can hardly be declared deficient
where he did just what Petitioner claims he should have. Moreover, Petitioner has failed to show
any prejudice as a result of counsel’s conduct, only the possibility that these paragraphs might
increase his security score and impair his ability to transition to a halfway house. Moreover,
Petitioner cannot demonstrate prejudice where BOP records reflect that Petitioner is currently in
a residential reentry center. Therefore, this claim fails.
III. CONCLUSION
Based upon the above, it is therefore
ORDERED that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Docket
No. 1) is DENIED in part as set forth above. It is further
ORDERED that the Court will hold an evidentiary hearing on October 7, 2024, at 9:30
a.m. on Petitioner’s claim of ineffective assistance related to counsel’s failure to file an appeal.

38

Case No. 2:16-CR-167 TS, Docket No. 45, at 5.

39

Id.
10

DATED this 25th day of September, 2024.
BY THE COURT:

Ted Stewart
United States District Judge

11