The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Leo Pineda ("petitioner" or "Pineda"), a federal prisoner, has filed a "Petition Under 28 USC § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody", [Doc. 48]. The United States has responded in opposition to the motion [Doc. 53] and the matter is now ripe for disposition. The Court has determined that the petition and record of prior proceedings in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's § 2255 petition lacks merit, and the petition will be DENIED.
I. Procedural and Factual Background
Pineda was indicted by the federal grand jury on March 8, 2005, in a three count indictment which charged him in Count I with conspiracy to distribute and to possess with the intent to distribute methamphetamine, in Count II with knowingly and intentionally using a communication facility, that is a telephone, to facilitate a violation of 21 U.S.C. § 846 and in Count III with knowingly distributing and possessing with the intent to distribute 500 grams or more of methamphetamine, [Doc. 1]. On November 21, 2005, Pineda entered a guilty plea to Count I pursuant to a negotiated plea agreement, [Doc. 30]. Pineda was sentenced on May 22, 2006, to a term of imprisonment of 87 months, to be followed by a term of three years of supervised release. Judgment was entered on May 30, 2006, [Doc. 46]. Petitioner did not appeal his conviction or sentence and his sentence was considered final on June 13, 2006. The petitioner timely filed this petition pursuant to 28 U.S.C. § 2255 on December 15, 2006.
An agreed factual basis [Doc. 31] was filed along with the petitioner's plea agreement in which he stipulated to certain facts in the case:
In August, 2003, Mark Bustos began negotiating with Leo Pineda (Atlanta, GA) about the delivery of cocaine and methamphetamine to Bustos in Tennessee. These negotiations included recorded and unrecorded telephone calls between Bustos, Pineda and others. Pineda had supplied Bustos' brother (Francisco Bustos) in the past with cocaine and methamphetamine.
On August 11, 2003, Bustos met with Pineda and Alberta Chavez Arteaga in Atlanta, Georgia. The meeting was surveilled by the FBI and Pineda said he had cocaine available from California at $19,000 per kilogram. Pineda also quoted the price of "crystal" methamphetamine at $10,500 per half kilogram and "crank" methaphetamine at $12,000 -- $14,000 per kilogram. During the meeting, Bustos advised Pineda and Arteaga he would contact them about future deliveries in Tennessee.
On August 12, 2003, Bustos initially talked to Arteaga by phone and later made a recorded call to Pineda. Pineda quoted the price of cocaine again at $19,000 per kilogram but said the quantity [sic] was inferior. He told Bustos he couldn't deliver the cocaine. He said his associate Arteaga would make delivery for him. Later that day, Bustos received a return call from Pineda who said he was out of cocaine but could deliver one kilogram of "crank" to Bustos in Tennessee. Bustos talked again that day to Pineda and advised he would wait a week to obtain both cocaine and "crank" from Pineda. The calls on August 13, 2003 were recorded.
On August 26, 2003, Bustos made a recorded call to Arteaga setting up delivery for the next day. On August 27, 2003, Arteaga delivered approximately four pounds of methamphetamine to Tennessee and was arrested by law enforcement in Greene County. Arteaga was interviewed and said he spoke with Pineda before leaving Atlanta and was told to meet two of Pineda's associates at a grocery store to pick up the methamphetamine to be delivered to Bustos. Arteaga said he did meet two Hispanic males who provided him with the methamphetamine he delivered to Tennessee.
On August 28, 2003, Bustos made a recorded call to Pineda to report Arteaga had not shown up with the meth. This was their last conversation since Pineda disconnected his telephone the next day. Subpoenaed telephone records verify contacts between Bustos, Pineda and Arteaga. (17 calls between August 1, 2003 and August 27, 2003).
The methamphetamine seized from Arteaga was analyzed by the TBI laboratory in Knoxville, Tennessee. They determined there were 3.9 pounds of methamphetamine.
This Court must vacate and set aside petitioner's conviction upon a finding that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . ." 28 U.S.C. § 2255(b). Under Rule 8(a) of the Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to review the answer, any ...