United States District Court, N.D. Georgia, Atlanta Division
JOSE MORALES-SAMANO, BOP Reg. # XXXXX-XXX, Movant,
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:12-CV-2653-RWS-AJB
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
ALAN J. BAVERMAN, Magistrate Judge.
Movant, Jose Morales-Samano, a former federal prisoner, submitted a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence in criminal action number 1:09-cr-361-RWS-AJB-14. [Doc. 518.] Respondent filed a response in opposition. [Doc. 526.] For the reasons discussed below, the undersigned RECOMMENDS that the § 2255 motion be DENIED.
In a superseding indictment returned on August 25, 2009, Movant was charged with the following offenses: (1) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), & 846 (count one); (2) possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(ii), and 18 U.S.C. § 2 (count three); (3) conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(2)(A), 1956(a)(2)(B)(i) & (ii), & 1956(h) (count four); and (4) laundering $5, 241, 180.00, in violation of 18 U.S.C. §§ 2 & 1956(a)(2)(A) (count nine). [Doc. 82 at 2-3, 3-7, 11.]
On January 27, 2011, Movant decided to plead guilty. [Docs. 325, 325-1, 325-2.] At sentencing on September 22, 2011, the Court determined that Movant's United States Sentencing Guidelines range was 87 to 108 months imprisonment. [Doc. 496 at 2.] However, the Court sentenced Movant to 54 months imprisonment, followed by five years supervised release. [Doc. 398 at 2-3.] Movant did not appeal. Instead, he delivered his § 2255 motion to prison authorities for mailing on July 30, 2012. [Doc. 518 at 12.] Respondent does not dispute that the § 2255 motion was timely filed pursuant to 28 U.S.C. § 2255(f).
II. 28 U.S.C. § 2255 Standard
A motion to vacate, set aside, or correct a sentence may be made "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...." 28 U.S.C. § 2255(a). "[C]ollateral review is not a substitute for a direct appeal...." Lynn v. United States , 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). 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." Id. (quoting Richards v. United States , 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted).
"Generally, if a challenge to a conviction or sentence is not made on direct appeal, it will be procedurally barred in a 28 U.S.C. § 2255 challenge" unless the movant "overcome[s] this procedural default by showing both cause for his default as well as demonstrating actual prejudice suffered as a result of the alleged error." Black v. United States , 373 F.3d 1140, 1142 (11th Cir. 2004). Despite the procedural default rule, "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro v. United States , 538 U.S. 500, 509 (2003).
A § 2255 movant "has the burden of sustaining his contentions by a preponderance of the evidence." Tarver v. United States , 344 Fed.Appx. 581, 582 (11th Cir. Sept. 18, 2009) (per curiam) (quoting Wright v. United States , 624 F.2d 557, 558 (5th Cir. 1980)). The Court must conduct an evidentiary hearing unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255(b). As the undersigned will explain below, an evidentiary hearing is not needed because the § 2255 motion and record in this case conclusively show that Movant is entitled to no relief.
Movant asserts that (1) trial counsel provided ineffective assistance by failing to (a) explain the charges (ground one), and (b) advise him "of the benefits of the fast track program" under U.S.S.G. § 5K3.1 (ground four); and (2) the sentence was unreasonable because the Court failed to consider (a) evidence of Movant's innocence (ground two), and (b) Movant's "consistent employment, " cooperation with the Government, and lack of "criminal activity involved with controlled substances" (ground three). [Doc. 518 at 4-9.]
A. Ground One
In order to demonstrate ineffective assistance of counsel, a convicted defendant must show that (1) "counsel's performance was deficient, " and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687 (1984). As to the first prong, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (internal quotation marks omitted). As to the second prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court may consider either prong first and need not address the other "if the defendant makes an insufficient showing on one." Id. at 697.
"[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between [pleading guilty] and going to trial." Searcy v. Fla. Dep't of Corr. , 485 Fed.Appx. 992, 997 (11th Cir. Aug. 9, 2012) (per curiam) (quoting Wofford v. Wainwright , 748 F.2d 1505, 1508 (11th Cir. 1984)) (internal quotation marks omitted). A defendant who has pleaded guilty must satisfy the second prong of Strickland by showing that "there is a reasonable ...