Venegas-Ramirez v. United States of America

Filing 6

ORDER denying Petitioner's 1 Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence, signed by Judge Richard A Jones. (SWT) (cc: Petitioner via USPS)

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1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 DOMINGO VENEGAS-RAMIREZ, 11 Petitioner, 12 14 ORDER v. 13 CASE NO. C16-1204 RAJ UNITED STATES OF AMERICA, Respondent. 15 16 17 This matter comes before the Court on pro se Petitioner Domingo Venegas- 18 Ramirez’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence 19 By a Person in Federal Custody. Dkt. # 1. The Government filed a response to the 20 Motion. Dkt. # 5. For the reasons that follow, the Court DENIES Mr. Venegas21 Ramirez’s Motion. 22 I. BACKGROUND 23 On January 12, 2016, Mr. Venegas-Ramirez pleaded guilty to Conspiracy to 24 Distribute Controlled Substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 25 and 846. Dkt. # 5-1 (Transcript of Change of Plea Proceedings). 26 On April 8, 2016, the Court sentenced Mr. Venegas-Ramirez to seventy-two 27 months in prison. Dkt. # 5-2 (Transcript of Sentencing Hearing). In doing so, the Court ORDER- 1 1 adopted the parties’ recommendation to vary downward from the Sentencing Guidelines 2 range, which was calculated at 168-210 months. Id. at 10. 3 On August 1, 2016, Mr. Venegas-Ramirez filed a § 2255 motion claiming 4 ineffective assistance of counsel. Dkt. # 1. 5 II. 6 Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set LEGAL STANDARD 7 aside, or correct his or her sentence “upon the ground that the sentence was imposed in 8 violation of the Constitution or laws of the United States, or that the court was without 9 jurisdiction to impose such sentence, or that the sentence was in excess of the maximum 10 authorized by law, or is otherwise subject to collateral attack . . . .” 11 Under 28 U.S.C. § 2253(c), there is no right to appeal from a final order in a 12 proceeding under section 2255 unless a circuit judge issues a certificate of appealability. 13 28 U.S.C. § 2253(c)(1)(B). 14 III. 15 Mr. Venegas-Ramirez premises his Motion on four ineffective assistance of DISCUSSION 16 counsel claims. First, he contends that his trial counsel failed to advise him of his Fifth 17 and Sixth Amendment rights before he pleaded guilty. Second, he contends that counsel 18 failed to ensure that his guilty plea was supported by sufficient evidence that he 19 committed the crime of conviction. Third, he contends that counsel failed to ensure that 20 he received a sufficient opportunity for allocution at his sentencing hearing. Fourth, he 21 contends that counsel failed to file a notice of appeal. 22 A claim for ineffective assistance of counsel requires a showing that (1) counsel’s 23 representation fell below an objective standard of reasonableness, and (2) the claimant 24 was prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668, 25 687 (1984). The first step requires showing “that counsel made errors so serious that 26 counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 27 Amendment.” Id. In applying this first step, courts “must apply a strong presumption ORDER- 2 1 that counsel’s representation was within the wide range of reasonable professional 2 assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quotation marks and 3 citation omitted). The second step requires showing “that counsel’s errors were so 4 serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 5 Strickland, 466 U.S. at 687. 6 Mr. Venegas-Ramirez cannot make the requisite showing under Strickland. First, 7 he cannot show he was improperly advised of his constitutional trial rights because the 8 hearing transcript shows that the Court carefully advised him of the rights he was waiving 9 by entering a guilty plea. Dkt. # 5-1 (Transcript of Change of Plea Proceedings). 10 Second, he cannot show that his guilty plea was unsupported by sufficient evidence 11 because he admitted to engaging in conduct that meets the requisite elements of 21 12 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Id. at 13; see also Case No. CR14-197-RAJ, 13 Dkt. # 33 (Plea Agreement) (W.D. Wash. Jan. 12, 2016). Third, he cannot show that he 14 was deprived of the opportunity for allocution because the transcript of the sentencing 15 hearing shows that he was offered the opportunity to address the Court and in fact did 16 address the Court. Dkt. # 5-2 (Transcript of Sentencing Hearing) at 15. Fourth, even if 17 Mr. Venegas-Ramirez were able to show that counsel acted unreasonably by failing to 18 heed his request to appeal, he cannot establish prejudice. As part of his plea agreement 19 he waived his right to appeal in exchange for the Government dismissing the remaining 20 counts in the Third Superseding Indictment and a pending related Indictment as well as 21 any additional drug-related charges. Dkt. # 5-1 (Transcript of Change of Plea 22 Proceedings) at 10; Case No. CR14-197-RAJ, Dkt. # 33 (Plea Agreement) at ¶ 15. Mr. 23 Venegas-Ramirez’s ineffective assistance claims are without merit. 24 IV. 25 For the reasons stated above, the Court DENIES Mr. Venegas-Ramirez’s Motion CONCLUSION 26 Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in 27 Federal Custody (Dkt. # 1) and directs the clerk to DISMISS this action and enter ORDER- 3 1 judgment for the Government. The Court finds that reasonable jurists would not debate 2 the resolution of this motion. Accordingly, the Court declines to issue a certificate of 3 appealability. See Fed. R. Governing § 2255 Proceedings, Rule 11(a); Slack v. 4 McDaniel, 529 U.S. 473, 484 (2000). 5 6 Dated this 28th day of June, 2017. 7 A 8 9 The Honorable Richard A. Jones United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER- 4

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