The opinion of the court was delivered by: Judge Sara Lioi
Before the Court is a motion by Petitioner Vincente Benitez (Petitioner) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Case. No. 1:11CV728, Doc. No. 1; Case No. 1:09CR363, Doc. No. 568.)*fn1 The government has filed a brief in opposition to Petitioner's motion. (Doc. No. 570.)
Petitioner was indicted August 12, 2009, on one count of conspiracy to possess with intent to distribute heroin, cocaine, and cocaine base; one count of possession with the intent to distribute cocaine; seventeen counts of use of a telephone to facilitate drug trafficking; and one count of travel in interstate commerce to promote drug trafficking. (Doc. No. 1.) On November 13, 2009, pursuant to a plea agreement, Petitioner pleaded guilty to only one count-conspiracy to possess with intent to distribute heroin, cocaine, and cocaine base. (Doc. No. 398.) All other counts of the indictment were ultimately dismissed, and Petitioner was sentenced to 108 months' imprisonment, five years' supervised release, and a $100 special assessment. (Doc. No. 514.)
Petitioner now challenges his sentence under 28 U.S.C. § 2255, asserting four grounds for relief. First, Petitioner contends that he was denied effective assistance of counsel when his counsel allegedly failed to negotiate a favorable plea agreement and did not adequately explain the nature and consequences of the plea agreement to Petitioner. Second, Petitioner asserts that his counsel was ineffective in not seeking-and the Court in error in not granting-a three-level Sentencing Guidelines reduction for acceptance of responsibility. Third, Petitioner asserts that the determination as to the quantity of drugs involved in his offense was improperly made and that his counsel was ineffective in failing to challenge this error. Last, Petitioner claims he was entitled to a downward departure in the application of the Sentencing Guidelines because of his status as an "illegal alien." (Doc. No. 568, p. 15.)
When a petitioner files a § 2255 motion, the sentencing court should hold an evidentiary hearing "[u]nless 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). "[N]o hearing is required 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.'" Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
The Court finds that a hearing is not warranted in the present case. As the analysis below demonstrates, many of the claims made in Petitioner's motion are barred by the terms of his plea agreement. Those claims that are not barred by that agreement are conclusively refuted by the robust record in this case.
I. Preclusive Effect of Waiver of Right to Appeal
As part of his plea agreement, Petitioner expressly waived his right to appeal, including his right to "a proceeding under 28 U.S.C. § 2255." (Doc. No. 398, p. 8.) The expansive waiver agreed to by Petitioner included only four exceptions. Petitioner reserved his right to pursue appeals only in regard to (1) "any punishment in excess of the statutory maximum," (2) "any sentence to the extent it exceeds the greater of any statutory mandatory minimum sentence or the maximum of the guideline range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations" found in the plea agreement, (3) claims of ineffective assistance of counsel, and (4) claims of prosecutorial misconduct. (Doc. No. 398, pp. 8-- 9.)
"A defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement." United States v. Sharp, 442 F.3d 946, 949 (6th Cir. 2006) (quoting United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005)). This includes waiver of the right to appeal, "so long as the waiver is made knowingly and voluntarily." United States v. Walls, 390 F. App'x 545, 548 (6th Cir. 2010) (citing United States v. Fleming, 239 F.3d 761, 763--64 (6th Cir. 2007)). The Sixth Circuit Court of Appeals looks to both the plea agreement and the plea colloquy to determine the validity of such a waiver. Walls, 390 F. App'x at 548 (citing United States v. Swanberg, 370 F.3d 622, 626 (6th Cir. 2004)).
The terms of the plea agreement here are unequivocal. Petitioner waived all appellate rights save the four exceptions enumerated above. The transcript of the plea colloquy also reflects that Petitioner entered into the plea agreement knowingly and voluntarily. The Court repeatedly verified with Petitioner that Petitioner-a Spanish speaker who was provided a certified court interpreter-did indeed understand the details of the proceedings and the plea agreement. (Doc. No. 563, pp. 10, 11, 14.) The Court reviewed the terms of the plea agreement with Petitioner section-by-section. Petitioner indicated he understood that, with the exception of the four enumerated reservations, he was "giving up all other rights to appeal or collaterally attack through this or in any other proceeding [his] sentence and conviction in this case." (Id., p. 33.) Petitioner also acknowledged that he had thoroughly discussed the plea agreement with his counsel (Id., p. 39), that no one had in any way coerced him to enter his plea (Id., p. 40), and that he fully understood the terms of the plea agreement (Id.). Petitioner's waiver of his appellate rights was thus knowing and voluntary and, as such, precludes him from raising, under the guise of a § 2255 claim, any issues that fall outside of the four exceptions enumerated in the plea agreement.
Petitioner makes a variety of factual and legal claims in the Memorandum in Support of his § 2255 motion. None of these claims, however, fall within the statutory maximum; statutory mandatory minimum or Guidelines maximum; or prosecutorial misconduct exceptions to the appeals waiver found in the plea agreement.*fn2 Only the ineffective assistance exception overlaps with any of Petitioner's claims. As such, Petitioner's claims for § 2255 relief will be considered only to the extent that they implicate his right to effective assistance of counsel.
II. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are analyzed under the familiar Strickland standard. Under Strickland, in order to succeed on such a claim, a defendant must make two showings. First, he "must show that his counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance means that counsel made errors "so serious that counsel was not functioning as the ‗counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must also show that "the deficient performance prejudiced the defense." Id. The errors must have been "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. In the context of a guilty plea, the second showing is altered slightly, as defendant must show a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
When a defendant challenges the validity of a guilty plea, representations of the defendant, his lawyer, and the prosecutor at the plea hearing and the findings made by the judge at such a hearing "constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73--74 (1977). Such ...