United States District Court, E.D. Louisiana
ORDER AND REASONS
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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
28 U.S.C. § 2255
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. §
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).
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.
Ineffective Assistance of Counsel
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.
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.
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