United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
J CAUTHRON United States District Judge
has filed a Motion pursuant to 28 U.S.C. § 2255 seeking
to vacate, set aside, or correct his sentence. In his Motion,
Defendant raises a number of claims asserting each entitle
him to relief. Those claims can be grouped as follows: First,
three arguments that his counsel was ineffective; second, a
number of arguments challenging the manner in which his
sentence was calculated. For the reasons set forth below, the
only issues properly before the Court are the ineffective
assistance of counsel arguments.
ineffective assistance of counsel claim raises three points.
First, that his attorney represented he would talk to the
Assistant United States Attorney and reach an agreement that
the two-point gun enhancement would be dropped. Second, his
counsel informed him that if he did not want to take the plea
deal offered, that he could plead guilty on all counts and
have a hearing with the judge only. Third, that counsel would
argue the enhancements on the presentence investigation
report, both with the probation officer and if necessary at
sentencing, but that counsel did not make these arguments.
prevail on an ineffective assistance of counsel claim,
Defendant must demonstrate that his defense counsel performed
deficiently and that the performance prejudiced the
petitioner. See Strickland v. Washington, 466 U.S.
668, 687 (1984). Turning first to Defendant's argument
raising the alleged agreement to drop the gun enhancement,
Plaintiff has provided an affidavit from Defendant's
counsel asserting that no such agreement was in place. Even
absent the affidavit, the Court would find against Defendant.
In filling out his Petition to Enter Plea of Guilty,
Defendant specifically noted that document contained all
agreements between the parties. See Dkt. No. 55.
Nothing in that document referenced any agreement to drop the
gun enhancement. In short, Defendant cannot show that
counsel's performance was deficient on this issue; his
claim for ineffective assistance of counsel related to the
alleged agreement to drop the gun enhancement is denied.
second claim argues that counsel informed him if he did not
take the plea deal he could plead guilty to all counts and
have a hearing with the judge only; the affidavit provided by
counsel states this agreement was essentially true. According
to the affidavit, counsel discussed the terms of the plea
agreement offered by Plaintiff with his client and Defendant
objected only to the terms of the forfeiture agreement.
Counsel avers that he then explained they could forego the
plea agreement, simply plead guilty to the counts, and
challenge the forfeiture with the judge. The docket reflects
that was the course of action taken. Defendant rejected the
plea agreement offered by Plaintiff and instead entered into
a guilty plea to all counts. Counsel avers that there was no
challenge to the forfeiture amount because after reviewing
the evidence provided by Plaintiff, Defendant's counsel
was convinced that the potential amount of forfeiture was
substantially larger than that being sought by the
government. According to counsel's affidavit, Defendant
agreed with this course of action.
the Court were to discredit the affidavit of Defendant's
counsel, Defendant has failed to offer any evidence or
argument demonstrating that a different course of action on
the forfeiture amount would have changed his decision to
plead guilty. In order to establish that Defendant's
trial counsel was ineffective on this issue, he must also
demonstrate that “‘there is a reasonable
probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to
trial.'” Miller v. Champion, 262 F.3d
1066, 1072 (10th Cir. 2001) (citation omitted).
has offered no evidence or argument on this issue. Indeed, in
examining the facts and circumstances surrounding this
matter, the Court is persuaded that even had Defendant's
counsel taken a different path on the forfeiture matter, it
would not have impacted either Defendant's decision to go
to trial or the ultimate outcome of the forfeiture
proceedings. Accordingly, Defendant has failed to demonstrate
his counsel was ineffective on this issue.
Defendant's third argument raises counsel's promise
that he would argue enhancements on the PSI with the
probation officer and, when needed, at sentencing. Defendant
offers no elaboration within his brief of any fact or
argument on this issue. In the affidavit, Defendant's
trial counsel notes that Defendant's assertion is
essentially true and that counsel did indeed file objections
to certain portions of the presentence investigation report.
Counsel notes that on those matters to which he did not
object, it was because based on counsel's well-reasoned
opinion, no viable objection could be made. In examining
those matters, the Court agrees that counsel objected where
appropriate and on the other matters, no valid objection
could be raised. “It's well settled that if an
argument is meritless, defense counsel is not ineffective for
failing to make it.” Eitel v. United States,
Nos. 13-GV-03-ABJ, 11-CR-06-ABJ, 2013 WL 4525321, *3 (10th
Cir. Aug. 27, 2013). Defendant's arguments that his
counsel was ineffective are without merit and his request for
relief on those claims will be denied.
Court cannot consider Defendant's remaining arguments.
The arguments challenging the manner in which his sentence
was determined must necessarily have been originally brought
in a direct appeal and not in a collateral attack.
“‘[Section] 2255 is not available to test the
legality of matters which should have been raised on
appeal.'” United States v. Walling, 982
F.2d 447, 448 (10th Cir. 1992) (quoting United States v.
Khan, 835 F.2d 749, 753 (10th Cir. 1987)). Defendant did
not file a direct appeal challenging these issues, and
Plaintiff has raised the procedural bar. Thus, absent a
demonstration of cause and prejudice or a miscarriage of
justice, Defendant is barred from raising them now. See
United States v. Allen, 16 F.3d 377, 378 (10th Cir.
When a defendant fails to challenge his sentence on direct
appeal but subsequently attempts to do so under § 2255,
the courts may take one of several courses of action. First,
if the government raises procedural bar, the courts must
enforce it and hold the defendant's claims procedurally
barred unless cause and prejudice or a miscarriage of justice
has offered no argument or evidence on the cause/prejudice or
miscarriage of justice issue. Therefore, the Court finds his
challenges to the manner in which his sentence was determined
to be procedurally barred.
a decision can be made on basis of the record before the
Court, no hearing is necessary on Defendant's arguments
regarding ineffective assistance of counsel. See United
States v. Mota, Nos. 11-40047-09-JAR, 13-4130-JAR, 2014
WL 2772924, *2 (10th Cir. June 19, 2014).
reasons set forth herein, Defendant's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct a
Sentence by a Person in Federal Custody (Dkt. Nos. ...