United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
Michael R. Barrett, United States District Judge.
matter is before the Court upon Petitioner Angel
Martinez's Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody. (Doc. 101). The Government filed a Response in
Opposition. (Doc. 109). Petitioner filed a Reply. (Doc. 113).
Thereafter, Petitioner filed a Motion pursuant the Rule
15(d), Fed. Civil P. to the Supplement Mr. Martinez Reply to
the Government Response (Doc. 116); a Supplemental Brief
(Doc. 118); and Motion to Expedite (Doc. 123). Also pending
before the Court is Petitioner's Motion to Appoint
Counsel. (Doc. 117).
good cause shown, Petitioner's Motion pursuant the Rule
15(d), Fed. Civil P. to the Supplement Mr. Martinez Reply to
the Government Response (Doc. 116) is GRANTED. The Court will
consider Petitioner's Supplement in its decision on
whether to grant Petitioner's Petition.
was indicted along with two co-defendants on two violations:
conspiracy to possess with the intent to distribute one
kilogram or more of heroin and five kilograms or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21
U.S.C. § 841(b)(1)(A)(i) and (ii), and 21 U.S.C.§
846 (Count One); and possession with intent to distribute
heroin in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846, and 18 U.S.C. § 2 (Count Four). (Doc.
14). Defendant pled guilty to Count One of the Indictment.
(Doc. 49). The maximum penalty for the violation of 21 U.S.C.
§ 846, 21 U.S.C. §841(a)(1) and 21 U.S.C.
§841(b)(1)(A)(i) and (ii) is up to life imprisonment, a
$10, 000, 000 fine, at least five years of supervised
release, a mandatory $100 special assessment, and
restitution. The mandatory minimum term of imprisonment is
ten years. The Court sentenced Petitioner to 120 months in
prison, waived the fine, imposed the special assessment, and
imposed a term of Supervised Release of five years. (Doc.
82). The United States dismissed without prejudice Count Four
of the Indictment. (Id.).
filed an appeal (Doc. 69), but the Sixth Circuit affirmed the
sentence imposed by the Court. (Doc. 95). Specifically, the
Sixth Circuit found that the Court did not err in finding
that Petitioner was not entitled to a safety-valve reduction
under U.S.S.G. § 5C1.2.
sets forth two grounds for relief in his petition under 28
U.S.C. § 2255. First, Petitioner argues that his trial
counsel was ineffective because counsel failed to advise him
to accept the Government's first plea offer, never
explained the terms and conditions of his first plea offer,
and never told him about the potential consequences that he
would face if he did not accept the first plea offer.
Petitioner explains that as a result, he wound up accepting
the Government's second plea offer which required him to
plead guilty to conspiring a greater amount of heroin and an
additional five kilograms of cocaine. Petitioner explains
that under the second plea offer, the Court was required to
impose a minimum sentence of ten years, but under the first
plea offer, it was likely that Petitioner would have only
been sentenced to a five-year sentence based on the guideline
range. Petitioner states that counsel failed to adequately
investigate his case before advising him to reject the first
plea offer because counsel did not obtain his case file from
a previous attorney, or review Petitioner's grand jury
testimony wherein Petitioner admitted distributing six ounces
of heroin to one of his co-defendants. Petitioner explains
that if his counsel had done an adequate investigation, he
would have found out that Petitioner's grand jury
testimony could have been used against him if he chose to go
Petitioner argues that his trial counsel was ineffective in
advising him that if he accepted the Government's second
plea offer, he would not be held responsible for the entire
drug amounts listed in the second plea offer. Petitioner
explains that his trial attorney told him that if he accepted
the Government's second plea offer, he would ask the
Government to recommend the safety valve reduction, and if
his request was denied, Petitioner could withdraw his guilty
plea. However, Petitioner explains, the Government opposed
his request for a safety valve reduction and the Court
rejected his request. Petitioner explains that the
Government's evidence would have supported a conviction
for conspiracy to distribute six ounces of heroin, but would
not have supported a conviction of conspiracy to distribute
one kilogram or more of heroin and five kilograms or more of
cocaine. Petitioner explains further that even if he had been
found guilty of both Counts One and Four at trial, his
sentencing guideline range would have been 120 to 121
months-which is about the same amount of time the second plea
offer allowed the Court to impose. Petitioner states that if
counsel had not given him bad advice, he would have rejected
the second plea offer and gone to trial.
STANDARD OF REVIEW
prisoner seeking relief under 28 U.S.C. § 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.” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003) (citing Weinberger v.
U.S., 268 F.3d 346, 351 (6th Cir. 2001), cert.
denied, 535 U.S. 967).
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) (quoting Turner v. United
States, 183 F.3d 474, 477 (6th Cir.1999)). However, no
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.”
Motion to Appoint Counsel
has moved for this Court to appoint counsel to present his
legal position. Petitioner explains that he lacks knowledge
of the law and his language barrier ...