United States District Court, M.D. Tennessee, Nashville Division
WILLIAM J. HAYNES, Jr., District Judge.
Movant, Efrain Rodriguez, filed this pro se action under 28 U.S.C. § 2255 seeking to set aside his convictions for conspiracy with the intent to distribute more than 500 grams of methamphetamine for which Movant received a sentence of 89 months. In his original petition, Movant asserted several claims of ineffective assistance of counsel. (Docket Entry No. 1). After a review of the pro se petition, the Court appointed the Federal Public Defender who filed an amended motion (Docket Entry No. 14) with the following claims of ineffective assistance of counsel: (1) that trial counsel was ineffective in advising Movant on his plea agreement; (2) that trial counsel failed to object to presentence investigation report and the Governments's rebuttal statements at sentencing; (3) that trial counsel failed to translate the plea agreement and had difficulty communicating with Movant, whose language is Spanish; (4) that counsel failed to effectively explain the Methamphetamine Sentencing Guideline; and (5) that trial counsel failed to pursue an appeal.
A. Procedural History
On September 2, 2009, Movant was indicted for conspiring to possess with intent to distribute and distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine. United States v. Rodriguez, Case No. 3:09-cr-00202 (M.D. Tenn. 2009). Shortly thereafter, Movant agreed to cooperate and later pled guilty and executed a plea agreement with the United States. In his plea agreement, Movant agreed to the following facts:
8. Defendant will plead guilty because he is in fact guilty of the charges contained in the indictment. In pleading guilty, defendant admits the following facts and agrees that those facts establish his guilt beyond a reasonable doubt:
a. Beginning not later than on or about July 30, 2009, the exact date being unknown, in the Middle District of Tennessee and elsewhere, the defendant and his co-defendant, Edgar Morales (hereinafter "Morales"), did combine, conspire, confederate, and agree with each other and others known and unknown, to unlawfully, knowingly, and intentionally possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1), all in violation of Title 21, United States Code, Section 846.
b. Prior to July 30, 2009, officers of the Metropolitan Nashville Police Department ("MNPD") had worked with a confidential source (hereinafter "CS") to make controlled purchases of controlled substances from the defendant. The CS informed the MNPD officers that the defendant agreed to sell a kilogram of methamphetamine to the CS on July 30 2009, for $43, 000.
c. On July 30, 2009, MNPD officers conducted surveillance on the defendant as he met with the CS in Hendersonville, Tennessee, and as they traveled in the same vehicle to Nashville, Tennessee. The CS and the defendant drove to 570 McMurray Drive, the Whispering Hills Apartments, in Nashville, in the Middle District of Tennessee.
d. The MNPD officers observed the defendant walk into Apartment E-12. At that time, he was empty-handed. Several moments later, officers observed the defendant leave Apartment E-12 carrying a white bag. The defendant was accompanied by Morales. Both the defendant and Morles got into the vehicle with the CS.
e. The three individuals traveled to the Wal-mart located at Harding Pike and Nolensville Road. At that time, a MNPD officer pulled the vehicle over. Officers found inside the vehicle the white bag that the defendant was observed carrying out of Apartment E-12. Inside that bag was a substance that field-tested positive for methamphetamine.
f. The substance found inside the white bag was tested by a laboratory of the Drug Enforcement Administration. The results of that test indicated that the substance contained methamphetamine, that it weighed 999 grams, and that the purity level was approximately 88.4%.
g. Defendant acknowledges that for the purpose of determining the applicable advisory sentencing range under the United States Sentencing Guidelines (hereinafter "U.S.S.G."), the following conduct, to which he stipulates, constitutes relevant conduct under U.S.S.G. §1B1.3: the total amount of methamphetamine for which he is responsible is at least 500 grams but less than 1.5 kilograms.
This statement of facts is provided to assist the Court in determining whether a factual basis exists for defendant's plea of guilty and to assess relevant conduct for purposes of the United States Sentencing Guidelines. The statement of facts does not contain each and every fact known to defendant and to the United States concerning defendant's and/or others' involvement in the offense conduct and other matters.
United States v. Rodriguez, Case No. 3:09-cr-00202, Docket Entry No. 41 at 4-5.
At his guilty plea hearing, Nathan Moore appeared "on behalf of Anna Escobar." Id., Docket Entry No. 99 at 3. The guilty plea hearing included the ...