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Vasquez v. United States

United States District Court, N.D. Ohio, Eastern Division

June 12, 2019




         Before 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.

         I. Background

         On 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.[1]) 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.)

         On 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 that:

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.)[2] Vasquez signed the agreement and initialed each page.[3] (See generally, id.)

         On 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.)

         On June 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.

         II. Standard of Review

         A 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: “[1] the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] [the sentence] is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a).

         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).

         A 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).

         When a 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. ...

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