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United States v. Dennison

United States District Court, E.D. Louisiana

April 9, 2019


         SECTION: “B” (2)


         Before the Court are Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Rec. Doc. 200), the Government's Opposition (Rec. Doc. 203), and Petitioner's Response to the Government's Opposition (Rec. Doc. 205). For the reasons discussed below, IT IS ORDERED that the motion is DENIED.


         On January 3, 2016, Petitioner was arrested by Homeland Security Investigations. See Rec. Doc. 1. On January 14, 2016, a federal grand jury returned an indictment charging Petitioner, along with four others, with offenses related to conspiracy to import cocaine into the United States. See Rec. Doc. 41. In April 2017, Petitioner pled guilty, pursuant to a plea agreement, to one count of conspiracy to import five kilograms or more of cocaine in violation of 21 U.S.C. § 963. See Rec. Doc. 155. On July 19, 2017, Petitioner was sentenced to 80 months of incarceration and four years of supervised release. See Rec. Doc. 196.

         On June 11, 2018, Petitioner filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He alleges the sentence was imposed in violation of due process and ineffectiveness of his counsel. See Rec. Doc. 200. Specifically, he seeks benefit of a two-point safety valve reduction. Id. On July 11, 2018, Respondents filed an opposition to Petitioner's motion. See Rec. Doc. 203. Petitioner then filed a response to that opposition on August 13, 2018. See Rec. Doc. 205.


         A. 28 U.S.C. § 2255

         Pursuant to 28 U.S.C. § 2255 a prisoner may collaterally attack his or her sentence post-conviction and move the court to vacate, set aside or correct the sentence. A prisoner may move for relief under four instances: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         28 U.S.C. § 2255 further provides that the court shall grant a prompt hearing if the court finds that the sentence imposed was not authorized by law or would otherwise be open to collateral attack. In that case, the court must vacate the judgment, resentence the prisoner, or correct the sentence if appropriate. 28 U.S.C. § 2255(b). However, when the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief, the Court may deny a 28 U.S.C. § 2255 motion without an evidentiary hearing. U.S. v. Auten, 632 F.2d 478 (5th Cir. 1980).

         The Fifth Circuit has held that a federal habeas court is not required to hold an evidentiary hearing. See Semien v. United States, 746 Fed.Appx. 303, 308 (5th Cir. 2018) (citing McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998)). Thus, in order to obtain a federal evidentiary hearing, “the burden is on the petitioner to allege facts which, if proved, would entitle him to relief.” Semien, 746 Fed.Appx. at 308 (quoting Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989)). In the instant case, Petitioner argues that his attorney failed to argue for the two-point safety valve reduction at the sentencing hearing and during the preparation of the pre-sentence report and as such was an ineffective counsel. See Rec. Doc. 200 at 15.

         B. Ineffective Assistance of Counsel

         When analyzing claims concerning ineffective assistance of counsel, courts refer to the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court set forth a two-prong test for determining ineffective assistance of counsel claims. A petitioner seeking relief must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland 466 U.S. at 697. Petitioner bears the burden of proof and must prove by a preponderance of evidence that his counsel was ineffective. See Rector v. Johnson, 120 F.3d 551, 563 (5th Cir. 1997); Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000). A court is not required to address both prongs of the test if the court finds that the petitioner has not sufficiently proven one of the two prongs. See Strickland, 466 U.S. at 697. In other words, a court may dispose of the claim without addressing the other prong.

         To prove deficient performance, the petitioner must show that defense counsel's representation “fell below an objective standard of reasonableness.” See United States v. Bolton, 908 F.3d 75, 99 (5th Cir. 2018) (quoting Strickland, 466 U.S. at 688). The Fifth Circuit has repeatedly held that courts apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Halprin v. Davis, 911 F.3d 247, 258 (5th Cir. 2018); Lucio v. Davis, 751 Fed.Appx. 484, 491 (5th Cir. 2018); Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986). The petitioner must overcome this presumption as the courts take into account the reasonableness of counsel's conduct under all of the circumstances. See Strickland, 466 U.S. at 689; Lucio, 751 Fed.Appx. at 491.

         To show prejudice, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” United States v. Avila-Gonzales, 2018 U.S. App. LEXIS 35950 *3-4 (5th Cir. Dec. 20, 2018) (citing Strickland, 466 U.S. at 694). Therefore, the petitioner must be able to demonstrate that the outcome would have been different. See id. “The likelihood of a different result must be ...

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