Dones-Vargas v. United States, 4:20-CV-04124-KES

ORLANDO DONES-VARGAS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 4:20-CV-04124-KES

United States District Court, D. South Dakota, Southern Division

October 5, 2021

ORDER ADOPTING THE REPORT AND RECOMMENDATION IN FULL AND GRANTING THE RESPONDENT'S MOTION TO DISMISS

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

Movant Orlando Dones-Vargas, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Docket 1.^[1] Respondent moved to dismiss the action for failure to state a claim. Docket 25. Dones-Vargas responded to the motion to dismiss. Docket 27. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and this court's October 16, 2014, standing order. The Magistrate Judge recommends that all of Dones-Vargas's claims be dismissed and that respondent's motion to dismiss be granted. Docket 29 at 30. Dones-Vargas makes multiple objections. Docket 31. For the following reasons the court grants respondent's motion to dismiss.

FACTUAL BACKGROUND

A. Criminal Case

Dones-Vargas was charged with conspiracy to distribute 500 grams or more of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. CR Docket 2. Attorney Rick Ramstad was appointed to represent Dones-Vargas at his initial appearance, arraignment, and bond hearing on September 18, 2017. CR Dockets 15, 16. Dones-Vargas entered a plea of not guilty. CR Docket 15. Attorney Ryan Kolbeck entered his appearance on behalf of Dones-Vargas on November 1, 2017, and Mr. Ramstad withdrew from the case six days later. CR Dockets 20, 23. Mr. Kolbeck represented Mr. Dones-Vargas up to and through his trial and direct appeal. See CR Docket 122.

Later, a superseding indictment was filed, and it added one count of possession with intent to distribute five grams or more of a mixture containing methamphetamine in violation of 21 U.S.C. § 841(a)(1). CR Docket 36. Dones-Vargas pleaded not guilty to both counts in the superseding indictment. CR Docket 39. Dones-Vargas's case went to a jury trial on January 29, 2018, where he was represented by Mr. Kolbeck. See CR Docket 59. The jury found Dones-Vargas guilty on both counts. CR Docket 67.

Dones-Vargas's draft PSR noted that he was not entitled to an adjustment in his U.S. Sentencing Guidelines (USSG) offense level for acceptance of responsibility because, “[p]ursuant to USSG § 3E1.1, comment. (n.2), [Dones-Vargas] . . . put the government to its burden of proof at trial by denying the essential factual elements of guilt and was convicted.” See CR Docket 73 at 7, ¶ 20. It also noted that he maintained his innocence even after trial. Id. Dones-Vargas did not object to these findings. See CR Docket 76. The final PSR also included these findings. CR Docket 82 at 7, ¶ 20. Dones-Vargas did not raise any objections to the PSR's recommendation that he not receive an adjustment for acceptance of responsibility at his sentencing hearing. See CR Docket 130. The guideline sentencing range for Dones-Vargas was 235-293 months' imprisonment and five years' supervised release. Id. at 51. Dones-Vargas continued to maintain his innocence at his sentencing hearing. Id. at 52. He was sentenced to 235 months' imprisonment and five years' supervised release and received no downward adjustment for acceptance of responsibility. See Id. at 57.

Dones-Vargas appealed his conviction and sentence. CR Docket 117. He raised one issue on direct appeal, and the Eighth Circuit Court of Appeals affirmed his conviction and denied his claim on the merits. CR Docket 134 Now, Dones-Vargas raises three grounds in support of his motion under § 2255. Docket 1. The Magistrate Judge stated the claims were:

1. Dones-Vargas's Sixth Amendment right to the effective assistance of counsel was violated when

a. Mr. Kolbeck failed to research and advise Dones-Vargas about nolo contendere pleas and the possibility of entering a plea of nolo contendere in his criminal case.

b. Mr. Kolbeck advised him to proceed to trial without first investigating the facts, circumstances, and laws involved in making that decision. c. Mr. Kolbeck did not diligently investigate, explore, or attempt to negotiate a favorable plea agreement.

d. Mr. Kolbeck did not advise Dones-Vargas he had virtually no chance of prevailing at trial considering the strength of the government's evidence.

2. Dones-Vargas's Sixth Amendment right to the effective assistance of counsel was further violated in the following ways:

a. Mr. Kolbeck failed to investigate or present available, material, exculpatory evidence and testimony at trial that would have demonstrated that a government's witness was lying and that the allegations of Dones-Vargas distributing large amounts of methamphetamine were false.

b. Mr. Kolbeck failed to investigate or move for dismissal based on lack of venue or move for change of venue.

c. Mr. Kolbeck failed to request appropriate jury instructions and object to insufficient instructions.

d. Mr. Kolbeck failed to object to improper argument by the prosecution and failed to request curative instructions for the improper argument.

e. Mr. Kolbeck failed to investigate or present available evidence and legal authority material to sentencing.

f. Mr. Kolbeck failed to object to unlawful, false, and unreliable evidence used to determine the appropriate guideline sentencing range.

g. Mr. Kolbeck failed to investigate and present the strongest issues available to Dones-Vargas in his direct appeal.

h. Mr. Kolbeck represented Dones-Vargas despite a conflict of interest.

3. Dones-Vargas's conviction and sentence violate his First Amendment rights to free speech and to petition, his Fourth Amendment right to be free from unreasonable searches and seizures, his Sixth Amendment due process rights, including his rights to the assistance of counsel, to trial by jury, to confront adverse witnesses, to present a defense, and to compulsory process, and his Eighth Amendment right to be free from cruel and unusual punishment.

Docket 29 at 4-6.

STANDARD OF REVIEW

The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). In conducting its de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

DISCUSSION

I. Legal Standard

To establish ineffective assistance of counsel, a movant must meet the two-pronged standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the [movant] must show that counsel's performance was deficient.” Id. This “performance prong” requires the movant to show that counsel's representation “fell below an objective standard of reasonableness.” Id. at 688. To show deficiency, the movant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. This court must assess “whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688.

There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [movant] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' ” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690. Ordinarily, the Eighth Circuit “consider[s] strategic decisions to be virtually unchallengeable unless they are based on deficient investigation[.]” Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006).

“Second, the [movant] must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. This “prejudice prong” requires the movant to “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In other words, “[i]t is not enough for the [movant] to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Thus, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. The court need not determine deficiency before determining prejudice. Id. at 697.

“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id.

II. Objections to the Magistrate Judge's Report and Recommendation A. Objections to the Magistrate Judge's Reliance on Haversat

Dones-Vargas raises several objections to the Magistrate Judge's reliance on United States v. Haversat, 22 F.3d 790 (8th Cir. 1994). Docket 31 at 9-11.

In Haversat, two defendants pleaded nolo contendere to the charge of conspiring to fix prices. Haversat, 22 F.3d at 793. The defendants were denied an acceptance of responsibility deduction under USSG § 3E1.1. Id. Although the district court did declare that there was no acceptance of responsibility, it noted that...