United States District Court, N.D. Ohio, Eastern Division
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
the Court is the pro se motion of petitioner Jason
Vasquez (“Vasquez”) to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. (Doc. No.
28 [“Mot.”].) Respondent United States of America
(the “government”) opposes the motion (Doc. No.
34 [“Opp'n”]), and Vasquez has filed a reply.
(Doc. No. 37 [“Reply”].) For the reasons that
follow, Vasquez's motion is DENIED.
November 3, 2015, a federal grand jury returned a multiple
count indictment charging Vasquez with a number of
drug-related offense. (Doc. No. 6.) On February 9, 2016, the
government filed an “Information Re: Prior
Conviction.” (Doc. No. 17 [“Inf.”].) By
this filing, the government put Vasquez on notice that it
intended to rely on a prior “felony drug offense”
conviction “for the purpose of invoking the increased
sentencing provisions of Title 21, § 841(b), United
States Code.” (Id. at 79.) The notice
further identified the prior “felony drug
offense” as Vasquez's October 9, 2001 conviction in
the Lorain County Court of Common Pleas for trafficking in
cocaine, a fourth degree felony, under Ohio Rev. Code §
2925.03. (Id.) According to the notice, the
application of the penalty enhancement under 21 U.S.C. §
841(b)(1)(3) would result in a mandatory minimum sentence of
10 years. (Id. at 80.)
February 29, 2016, the government and Vasquez, who was
represented by counsel, entered into a plea agreement whereby
Vasquez agreed to enter a guilty plea to Count One of the
Indictment, charging conspiracy to possess with the intent to
distribute cocaine, pursuant to 21 U.S.C. § 841(a)(1),
(b)(1)(B), and Count Seven, being a felon in possession of a
firearm, in violation of 21 U.S.C. § 922. (Doc. No. 19
[“Plea Agr.”] at 94.) Several paragraphs
discussed the statutory enhancement and its effects. For
example, paragraph 3, entitled “Statutory Enhancement
Notice”, advised that, due to the enhancement, the
statutory mandatory minimum sentence for Count One was 10
years. (Id. at 85.) The agreement further provided
The parties realize that based upon the minimum mandatory
statutory penalty, Defendant's adjusted base offense
level must begin at the first level in his criminal history
category that encompasses a 120 month sentence pursuant to
U.S.S.G. § 5G1.1(b).
(Id. at 88.) Vasquez signed the agreement and initialed
each page. (See generally, id.)
February 19, 2016, the Court conducted a change of plea
hearing, during which the Court discussed in detail with
Vasquez both the written plea agreement and the consequence
of his guilty plea as they related to the notice of prior
felony drug offense. As part of the Fed. R. Crim. P. 11 plea
colloquy, the Court asked Vasquez if he had been previously
convicted of the state court offense and Vasquez answered in
the affirmative. (Doc. No. 33 (Change of Plea Hearing
Transcript [“Tr.”]) at 219.) The Court explained
that, under the enhancement, the presence of the prior felony
conviction would result in a minimum term of ten years
imprisonment, and Vasquez indicated that he understood.
(Id.) It was clear that Vasquez understood the
impact of the enhancement, as he responded to the Court's
question regarding whether he understood that the Court would
determine the sentence by asking, “Does it even matter,
because even though I have a mandatory minimum of 120
months?” (Id. at 228.) After asking if Vasquez
had been given sufficient time in which to confer with his
counsel and that he was satisfied with the representation he
received from his counsel (see id. at 257), both of
which he answered in the affirmative, the Court accepted
Vasquez's guilty plea as knowingly, intelligently, and
voluntarily made. (Id. at 260.)
2, 2016, this Court sentenced Vasquez to the lowest possible
sentence of 120 months. (Doc. No. 25 (Judgment).) In the
present motion to vacate, Vasquez argues that he received
ineffective assistance from his trial counsel because his
counsel failed to object to the § 841(b) enhancement.
Standard of Review
federal prisoner may attack the validity of his sentence by
filing a motion to vacate, set aside, or correct the sentence
under 28 U.S.C. § 2255 in the district court where he
was sentenced. Section 2255 sets forth four grounds upon
which a federal prisoner may state a claim for relief:
“ 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  [the sentence] is otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a).
criminal defendant may not utilize a § 2255 motion as a
substitute for a direct appeal. Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003); Capaldi
v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998)
(“An application under § 2255 . . . should not be
considered a substitute for direct appeal.”); see
Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993); Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999). To assert a
claim not raised on direct appeal, a petitioner ordinarily
must show cause for the default and prejudice. See
Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct.
1064, 140 L.Ed.2d 828 (1998); United States v.
Frady, 456 U.S. 1584, 1603-04, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1998).
petitioner who entered a guilty plea must show an error of
constitutional magnitude that had a substantial and injurious
effect or influence on the proceedings. Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003) (citing
Abrahamson, 507 U.S. at 637). Therefore, a court may
only grant relief under § 2255 if the petitioner
demonstrates “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” Id. at 736 (quoting Davis
v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41
L.Ed.2d 109 (1974)). A petitioner further bears the burden of
articulating sufficient facts to state a viable claim for
relief under § 2255. Vague and conclusory claims which
are not substantiated by allegations of specific facts with
some probability of verity are not enough to warrant relief.
A § 2255 motion may be dismissed if it only makes
conclusory statements without substantiating allegations of
specific facts and fails to state a claim cognizable under
§ 2255. Green v. Wingo, 454 F.2d 52, 53 (6th
Cir. 1972); O'Malley v. United States, 285 F.2d
733, 735 (6th Cir. 1961).
defendant challenges the validity of a plea, the
representations of the defendant, his lawyer, the prosecutor,
and the judge “constitute a formidable barrier in any
subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136
(1977). Such “[s]olemn declarations in open court carry
a strong presumption of verity.” Id.