United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Vacate Pursuant to 28 U.S.C.
§ 2255 (Rec. Doc. 534) filed
by Defendant Sabrina Deville. The United States of America
(“the Government”) opposes the motion
(Rec. Doc. 581). Having considered the pro
se motion, the opposition, the record, and the applicable
law, the Court finds that Defendant's Motion to
Vacate Pursuant to 28 U.S.C. § 2255
(Rec. Doc. 534) is DENIED
for the reasons set forth below.
Court held a rearraignment on March 29, 2017, at which
Deville plead guilty to Counts 1, 5, and 10 of a Superseding
Indictment. Pursuant to the plea agreement and as admitted to
by Deville in the factual basis, she committed violations of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), and
847. (Rec. Doc. 373, 374, and 375). On October 3, 2017, the
Court sentenced Deville to eighty-seven months for Counts 1
and 5, and forty-eight months for Count 10 to be served
concurrently. (Rec. Doc. 513). The Court ordered Deville to
surrender on or before November 1, 2017. (Rec. Doc. 515).
Deville brings the instant pro se motion to vacate the
sentence alleging three grounds: (1) ineffective assistance
of counsel; (2) government misconduct; and (3) incorrect
sentence. (Rec. Doc. 534).
2255 “provides the federal prisoner with a
post-conviction remedy to test the legality of his detention
by filing a motion to vacate judgment and sentence in his
trial court.” U.S. v. Grammas, 376 F.3d 433,
436 (5th Cir. 2004) (quoting Kuhn v. U.S., 432 F.2d
82, 83 (5th Cir. 1970)). The statute establishes that a
prisoner in custody under a sentence of a federal court
“may move the court which imposed the sentence to
vacate, set aside or correct the sentence.”
Id. (quoting 28 U.S.C. § 2255). Where there has
been a “denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence
him or grant a new trial or correct the sentence as may
appear appropriate.” Id. Relief under 28
U.S.C. § 2255 is reserved for violations of
constitutional rights and for a narrow range of injuries in
federal criminal cases that could not have been raised on
direct appeal and would result in a fundamental miscarriage
of justice. U.S. v. Petrus, 44 F.3d 1004 (5th Cir.
1994) (citing U.S. v. Vaughn, 955 F.2d 367, 368 (5th
district court may deny a Section 2255 motion without
conducting any type of evidentiary hearing if “the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.”
U.S. v. Arguellas, 78 Fed.Appx. 984, 986 (5th Cir.
2003) (quoting 28 U.S.C. § 2255; U.S. v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)). In those
cases, however, where the record does not conclusively negate
a prisoner's entitlement to relief, contested fact issues
may not be decided on affidavits alone. Id. (citing
Owens v. U.S., 551 F.2d 1053, 1054 (5th Cir. 1977)).
No. hearing is necessary if the issues raised have been
previously decided on direct appeal, contain no
constitutional violation, or lack support in the record.
U.S. v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981)
(citing Buckelew v. U.S., 575 F.2d 515 (5th Cir.
Law and Analysis
several specific instances and supporting facts, Deville
argues that her sentence should be vacated based upon three
grounds: (1) ineffective assistance of counsel; (2) the
Government's misconduct; and (3) incorrect sentence. The
Government argues that the Court should deny Deville's
motion because (1) her plea agreement waived her right to
contest the sentence that she received, other than for
ineffective assistance of counsel; (2) her arguments about
the sentencing guildelines calculations and variances are
procedurally barred; and (3) her arguments about
ineffectiveness have no merit. (Rec. Doc. 581, p. 4). Upon
review of each ground Deville alleges, the Court is persuaded
by the Government's response and denies Deville's
first claim is that her counsel provided gross ineffective
assistance of counsel in violation of her Sixth Amendment
right to counsel. (Rec. Doc. 534, p. 9). Deville alleges
several specific instances in which her counsel was
ineffective prior to her guilty plea. (Rec. Doc. 534, pp.
9-11). The assertions generally allege that her counsel
failed to investigate the case and make several objections.
(Id.). The Government counters that she fails to
show a deficiency in her counsel's handling of her case.
(Rec. Doc. 581, p. 6). The Government also asserts that
Deville's arguments lack merit because she pled guilty
before a trial, which is when her counsel would have been
able to challenge the Government's case. (Id.).
also alleges several specific instances in which her counsel
was ineffective subsequent to her guilty plea. (Rec. Doc.
534, pp. 11-15). The assertions generally allege that her
sentence could have been reduced had her counsel challenged
the merits of the government's case. (Id.). The
Government responds by arguing that because Deville plead
guilty, defense counsel was not deficient by abandoning
claims of innocence or mitigation of guilt. (Rec. Doc. 581,
accused is entitled, as a matter of constitutional law, to
assistance of counsel. U.S. v. Guerra, 94 F.3d 989,
994 (5th Cir. 1996) (citing Douglas v. Cal., 372
U.S. 353 (1963)). The representation must be effective.
Id. (citing Evitts v. Lucey, 469 U.S. 387
(1985); Lombard v. Lynaugh, 868 F.2d 1475, 1481 (5th
Cir. 1989)). To prevail on an ineffective assistance of
counsel claim, the petitioner must satisfy the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668
(1984). First, the petitioner must establish that
counsel's performance fell below an objective standard of
reasonableness. Grammas, 376 F.3d at 436 (citing
Strickland 466 U.S. at 687). This reasonableness
standard requires that counsel “research relevant facts
and law, or make an informed decision that certain avenues
will not be fruitful.” Id. (quoting United
States v. Conley, 349 F.3d 837, 841 (5th Cir.
second showing that the petitioner must make is that he was
prejudiced by counsel's substandard performance.
Grammas, 376 F.3d at 436. “To prove prejudice,
the defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. (quoting Conley, 349
F.3d at 841-42). The United States Court of Appeals for the
Fifth Circuit “consider[s] such factors as the
defendant's actual sentence, the potential minimum and
maximum sentences that could have been received, the
placement of the actual sentence within the range of
potential sentences, and any relevant mitigating or
aggravating circumstances.” United States v.
Seglar, 37 F.3d 1131, 1136 (5th Cir. 1994). If the
defendant makes ...