Valeriano v. United States

ANGEL VALERIANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 1:15-cv-01278-JDB-egb

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

March 19, 2019

Re. 1:13-cr-10092-JDB-3

ORDER DENYING AMENDED § 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner, Angel Valeriano, has filed an amended motion to vacate, set aside, or correct his sentence (the "Amended Petition"). (Docket Entry ("D.E.") 7.)¹ For the following reasons, the Amended Petition is DENIED.

BACKGROUND

In October 2013, a federal grand jury sitting in the Western District of Tennessee returned a two-count indictment charging Valeriano and other individuals with conspiring to distribute and possess with intent to distribute methamphetamine, cocaine, and marijuana (Count 1), in violation of 21 U.S.C. §§ 841(a)(1) and 846, and aiding and abetting the distribution, attempt to distribute, possession with intent to distribute, and attempt to possess with intent to distribute methamphetamine, cocaine, and marijuana (Count 2), in violation of 21 U.S.C. § 841(a)(1) and 18U.S.C. § 2. (United States v. Valeriano, No. 1:13-cr-10092-JDB-3 (W.D. Tenn.), D.E. 4.) A six-count superseding indictment was returned in November 2013, charging Valeriano in Counts 1, 2, 4, and 5. (Id., D.E. 116.) Counts 1 and 2 were unchanged from the original indictment and Counts 4 and 5 charged him, respectively, with possession with intent to distribute more than 500 grams of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and being an illegal alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a). The charges stemmed, in part, from the Defendant's² role in cutting methamphetamine for distribution by co-defendant Roman Morales-Garza. (Presentence Report (the "PSR") ¶¶ 7-19.)

The Defendant was represented by attorney Scott G. Kirk throughout the district court proceedings. (D.E. 16-1.) In April 2014, the Court granted the Government's motion to dismiss Count 4 of the superseding indictment. (No. 1:13-cr-10092-JDB-3, D.E. 303.) The Defendant remained charged in Counts 1, 2, and 5.

In September 2014, Valeriano entered a guilty plea to Count 2 of the superseding indictment. (Id., D.E. 437.) By the terms of his written plea agreement, he waived his right to appeal his sentence except in limited circumstances, acknowledged that his guilty plea could affect his immigration status, "affirm[ed] he want[ed] to plead guilty regardless of any immigration consequences," and agreed that he would "not seek . . . a further reduced sentence pursuant to 18 U.S.C. § 3582(c) based on Amendment 782." (Id., D.E. 440 ¶¶ 8-9.) For its part, theGovernment agreed to dismiss the remaining counts and not oppose a reduction in the Defendant's offense level for acceptance of responsibility. (Id., D.E. 440 ¶¶ 2, 4.)

The plea agreement also addressed the Defendant's cooperation:

The Government agrees to advise the probation office and the court of the extent and nature of the defendant's cooperation. The defendant's agreement to cooperate with the government is made pursuant to [United States Sentencing Guidelines] 1B1.8(a) & (b). If the defendant provides full, complete, truthful, and substantial cooperation to the government, the government reserving the right to make the decision on the nature and extent of the defendant's cooperation, then the Government agrees to consider moving for a downward departure under [United States Sentencing Guideline] § 5K1.1, 18 U.S.C. § 3553(e), or Rule 35 of the Federal Rules of Criminal Procedure. Both parties acknowledge that the district court has the power to deny a motion for downward departure. The defendant hereby agrees that the Government does not promise, by the terms of this agreement, to file a Section 5K1.1, 18 U.S.C. § 3553(e) or Rule 35 motion.

(Id., D.E. 440 ¶ 6.)

The section of the document titled "AGREEMENT DOES NOT PROMISE A SPECIFIC SENTENCE" provided as follows:

The defendant understands and agrees that the Court will make the final determination of facts as to any sentence and as to any mitigating or aggravating factors concerning the sentence to be imposed. Adverse rulings by the Court shall not be grounds for the withdrawal of the defendant's guilty plea or to appeal any sentence imposed. The Court is not limited to consideration of the facts and events provided by the Government.

(Id., D.E. 440 ¶ 10 (emphasis in original).)

In anticipation of sentencing, the United States Probation Office calculated an advisory imprisonment range of 100 to 135 months under the United States Sentencing Commission Guidelines Manual ("Guidelines," "Sentencing Guidelines," or "U.S.S.G."). (PSR ¶ 55.) The range reflected reductions in the Defendant's offense level for his acceptance of responsibility, seeU.S.S.G. § 3E1.1, as well as a two-level increase under U.S.S.G. § 2D1.1(b)(1) for his having possessed a firearm in connection with the offense. (Id. ¶¶ 25, 31.)

In his position statement, defense counsel objected to the application of the firearm enhancement. (No. 1:13-cr-10092-JDB-3, D.E. 503 at PageID 885-87.) He argued that "the weapon found near [the Defendant's] mattress was kept by him for protection such that the enhancement should not apply." (Id., D.E. 503 at PageID 887.) Counsel also urged "the Court to consider that [the Defendant] is subject to deportation as a result of his conviction in this matter." (Id., D.E. 503 at PageID 888.)

At the sentencing hearing conducted on January 20, 2015, defense counsel called Valeriano as a witness to testify in support of the objection. (Id., D.E. 547 at PageID 997-1002.) The Court ruled in the Defendant's favor, finding that the prosecution had not established grounds for application of the enhancement. (Id., D.E. 547 at PageID 1005.) The resulting Guidelines imprisonment range was determined to be eighty-seven to 108 months. (Id., D.E. 547 at PageID 1008.) The Court imposed a below-Guidelines sentence of eighty months' incarceration and three years of supervised release. (Id., D.E. 506.) Valeriano took a direct appeal, which was dismissed due to his appellate waiver. (Id., D.E. 573.)

DISCUSSION

In November 2015, the inmate filed a motion to vacate, set aside, or correct his sentence (the "Petition"), in which he asserted the following claims:

Claim 1: Counsel rendered ineffective assistance by "fail[ing] to move the court for a downward departure base[d] on Valeriano's s[ta]tus as a deportable alien." (D.E. 1 at PageID 1.)

Claim 2: Counsel rendered ineffective assistance by "fail[ing] to argue that the District Court had discretion to depart[] downward under U.S.S.G. 5K2.0 on the basis of Valeriano's willingness to consent to deportation." (Id. at PageID 2.)

Claim 3: "Valeriano['s] conviction was based [on] insufficient evidence [because] there was no physical evidence produced against him and his conviction was based solely on the testimony of an unreliable witness." (Id.)

Claim 4: Counsel rendered ineffective assistance at the plea stage by inducing Valeriano to plead guilty based on his erroneous promise that the sentence would be "no more than 50 months" of incarceration. (Id.)

On December 12, 2016, the Court ordered Petitioner to refile his claims on the Court's official § 2255 form. (D.E. 5.) The inmate filed the Amended Petition on the Court's form, asserting the following claims:

Claim 5: "[C]ounsel rendered ineffective assistance . . . because he did not request from the Government a Motion pursuant to Rule 35(b) Fed. R. Crim. P., once [Petitioner] cooperat[ed] with the Government." (D.E. 7 at PageID 15.)

Claim 6: "[C]ounsel rendered ineffective assistance . . . at the plea bargain stage" by "not deal[ing] properly with the Governm[en]t[] for a better plea agreement and/or cooperation agreement." (Id. at PageID 16.)

Claim 7: "[C]ounsel rendered ineffective assistance . . . when [he] did not investigate the evidence[] against" Petitioner.³ (Id. at PageID 18.)

Respondent, the United States of America, filed a response to the claims set forth in both the Petition and the Amended Petition, arguing that all are without merit. (D.E. 16.) TheGovernment also submitted a letter from defense counsel explaining his efforts and decision-making during the time he represented Petitioner. (D.E. 16-1). Valeriano filed a reply, maintaining that counsel performed deficiently in advising him to plead guilty and that, but for counsel's conduct, he would have "insisted on going to trial." (D.E. 17 at PageID 69.)

I. Legal Standards

A prisoner seeking to vacate his sentence under § 2255 "must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). "In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (internal quotation marks omitted). "[N]o hearing is required," however, "if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. A petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

A § 2255 claim that an attorney's ineffective assistance has deprived a criminal defendant of his Sixth Amendment right to counsel is controlled by the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984). Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). To succeed on such a claim, a petitioner must demonstrate...