United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
JANET F. KING, Magistrate Judge.
Movant, Wilber Avalos Perez, seeks via 28 U.S.C. § 2255 to challenge the constitutionality of his conviction and sentence entered in this Court under the above criminal docket number. The matter is before the Court on the § 2255 motion, (Doc. 628), the government's response, (Doc. 631), and Movant's reply, (Doc. 633).
The Grand Jury for the Northern District of Georgia indicted Movant on one count of conspiring to possess with intent to distribute cocaine, methamphetamine, and marijuana and on a second count of possessing with intent to distribute five kilograms or more of cocaine, 500 grams or more of methamphetamine, and less than 50 kilograms of marijuana. (Doc. 5 at 2-3). In October 2011, represented by Howard J. Manchel, Movant entered into a plea agreement with the government to plead guilty to the second count. (Doc. 318, Guilty Plea and Plea Agreement). The Court accepted Movant's guilty plea and imposed a ninety-eight month term of imprisonment. (Doc. 598 at 23; Doc. 443). Movant appealed, and the Eleventh Circuit Court of Appeals dismissed his appeal based on his valid appeal waiver. (See Doc. 619, Attach.). The United States Supreme Court denied certiorari . (Doc. 627).
Movant now brings a § 2255 motion in which he raises two grounds for relief: (1) ineffective assistance of counsel in regard to the validity of the appeal waiver and (2) ineffective assistance of counsel at sentencing. (Doc. 628, Mem. at 5-6).
II. 28 U.S.C. § 2255 Standard
Section 2255 of Title 28 allows a district court to vacate, set aside, or correct a federal sentence that was imposed in violation of the Constitution or laws of the United States or was imposed by a court without jurisdiction, exceeds the maximum sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Section 2255 relief "is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice." Lynn v. United States , 365 F.3d 1225, 1232 (2004) (quoting Richards v. United States , 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted); see also Massaro v. United States , 538 U.S. 500, 505-09 (2003) (holding that a constitutional claim of ineffective assistance of counsel generally is properly raised on collateral review in order to allow for adequate development and presentation of relevant facts). On collateral review, it is the movant's burden to establish his right to relief. Mackey v. United States , 221 F.Appx. 907, 910 (11th Cir. 2007).
"An evidentiary hearing is not required when the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Gordon v. United States , 518 F.3d 1291, 1301 (11th Cir. 2008) (quoting § 2255). That is the case here, as shown in the discussion below.
Movant stated in his guilty plea agreement that he understood "that he ordinarily would have the right to appeal his sentence and, under some circumstances, to attack the conviction and sentence in post-conviction proceedings" and that "[b]y entering this Plea Agreement, [he] may be waiving some or all of those rights to appeal and to collaterally attack his conviction and sentence[.]" (Doc. 318, Guilty Plea and Plea Agreement at 2). Movant specifically agreed that he voluntarily and expressly waived the right to appeal or collaterally attack his conviction and sentence, with exceptions that do not apply here. (Id. at 12). In exchange for Movant's guilty plea, the government, among other things, agreed to bring no additional charges related to the charge to which he was pleading guilty, that all remaining counts against Movant would be dismissed, and that it would recommend that Movant receive a downward adjustment to his guidelines offense level. (Id. at 4-5). Movant signed the guilty plea with the following statement:
I have read the foregoing Plea Agreement and have carefully reviewed every part of it with my attorney. I understand the terms and conditions contained in the Plea Agreement, and I voluntarily agree to them. I also have discussed with my attorney the rights I may have to appeal or challenge my conviction and sentence, and I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding.
(Id. at 14).
At the plea hearing, the government reviewed the plea agreement, including the waiver of appeal provision, and stated on the record that the agreement included "[Movant's] voluntary and express waiver of the right to appeal his conviction and sentence, and the right to collaterally attack his conviction and sentence in any post conviction proceeding on any ground, except where the Court upwardly departs or upwardly varies from the guidelines range as calculated by the Court or where the government directly appeals the sentence imposed." (Doc. 598 at 11). Movant, under oath, stated that he agreed with the government's description of the plea agreement and that he understood the plea agreement. (Id. at 11-12). When the Court asked Movant whether anyone had advised him not to tell the complete truth, Movant responded, "No." (Id. at 12-13). The Court again explained to Movant that in his plea agreement he was waiving his appeal rights, with the exceptions noted in the plea agreement, and asked Movant whether he understood that provision. (Id. at 20-21). Movant stated that he understood. (Id. at 21). The Court again explained to Movant that he was waiving his right to collaterally attack his sentence and asked him if he understood. (Id.). Movant stated that he did. (Id.).
At the end of the hearing, the Court asked Movant, "[i]s there anything I have said or any questions I have asked that you do not understand or you wish me to go back over and clarify?" (Id. at 22). Movant responded, "No, I understood everything." (Id.). The Court asked, "Do you and your attorney both feel you have had sufficient time to think about and discuss this matter fully among yourselves before entering this ...