United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
Guevara Cazarez (“petitioner”) is a federal
prisoner due to his conviction and sentence in this Court for
conspiring to distribute, and to possess with the intent to
distribute, 500 or more grams of a substance containing a
detectable amount of methamphetamine. He has filed a motion
pursuant to 28 U.S.C. §2255 to vacate, set aside, or
correct his sentence, [Doc. 99], which he has amended, [Doc.
113]. The United States has responded in opposition to the
motion, [Doc. 103], and petitioner has replied, [Doc. 112].
The United States has not been directed to respond to the
amended motion and the Court finds a response unnecessary.
For the reasons discussed in this memorandum, the motion is
was charged in an indictment with conspiring to distribute
and to possess with the intent to distribute 500 or more
grams of a substance containing a detectable amount of
methamphetamine (Count 1); possessing with the intent to
distribute 500 or more grams of a substance containing a
detectable amount of methamphetamine (Count 2); possessing a
firearm in furtherance of the offenses charged in counts one
and two (Count 3); being an illegal alien in possession of a
firearm (Count 4); being an illegal alien in possession of
ammunition (Count 5); and with illegally reentering the
United States after having been previously deported (Count
8).Attorney Joseph McAfee was appointed to
petitioner entered into a written plea agreement with the
United States in which he agreed to plead guilty to
Count One of the indictment, conspiring to distribute and to
possess with the intent to distribute 500 or more grams of a
substance containing a detectable amount of methamphetamine.
The plea agreement recited that petitioner faced a sentence
of a mandatory minimum of ten years' imprisonment up to a
possible maximum of life, 21 U.S.C. §841(b)(1)(A).
Petitioner also waived his right to appeal his conviction or
sentence except for a sentence imposed above the greater of
the mandatory minimum sentence or his guideline range, and he
also waived his right to file a § 2255 motion except for
claims of ineffective assistance of counsel or prosecutorial
misconduct unknown to him at the time of entry of judgment.
For its part, the United States agreed to dismiss the other
counts against petitioner, and that it would not oppose a
total reduction of three levels of his Offense Level.
Presentence Report established petitioner's Offense Level
at 36, which included a three-level enhancement under USSG
§ 3B1.1(b) for exercising a managerial or supervisory
role in the conspiracy. Petitioner filed an objection to that
enhancement, which the court overruled after a
hearing. His guideline range was 210 to 262
months. After finding, over petitioner's
objections, that petitioner acted in a managerial or
supervisory role in the conspiracy, the Court sentenced
petitioner to 235 months' imprisonment, precisely within
the middle of his guideline range.
appealed to the Sixth Circuit Court of Appeals, arguing that
his sentence was improperly enhanced based on what he
maintains was this Court's erroneous finding that he
exercised a supervisory role in the conspiracy. Although
noting that petitioner waived his right to a direct appeal,
the court of appeals reviewed the record and determined that
this court “properly found that [petitioner] was a
manager or supervisor of the conspiracy within the meaning of
[United States Sentencing Guideline]
§3B1.1(b).” That Court affirmed the judgment and
sentence of this Court, finding that plaintiff's guilty
plea was valid, and that his sentence was procedurally and
petitioner's first, or original, motion and accompanying
memorandum, [Docs. 99 and 100], he makes two claims, both of
which accuse trial counsel of providing unconstitutionally
ineffective assistance. First, he says that his attorney told
him that he confronted at most a sentence of between 10 and
15 years, and that the prosecutor would not seek an
enhancement based on petitioner's supervisory role.
Petitioner claims that based on these representations, he
elected to plead guilty. Second, petitioner claims that he
pleaded guilty only because he was misled by his lawyer's
assurances that his sentence would not be enhanced, and
therefore his guilty plea was not knowing and voluntary.
amended motion, [Doc. 107], petitioner argues that trial
counsel was unconstitutionally ineffective for failing to
object because his Offense Level was improperly based on a
weight of actual methamphetamine rather than upon a mixture
which contained methamphetamine.
Court must vacate and set aside petitioner's sentence if
it finds 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.
Under Rule 4 of the Governing Rules, the Court is to consider
initially whether the face of the motion itself, together
with the annexed exhibits and prior proceedings in the case,
reveal the movant is not entitled to relief. If it plainly
appears the movant is not entitled to relief, the court may
summarily dismiss the § 2255 motion under Rule 4.
defendant files a § 2255 motion, he must set forth facts
which entitle him to relief. Green v. Wingo, 454
F.2d 52, 53 (6th Cir. 1972); O'Malley v. United
States, 285 F.2d 733, 735 (6th Cir. 1961).
“Conclusions, not substantiated by allegations of fact
with some probability of verity, are not sufficient to
warrant a hearing.” O'Malley, 285 F.2d at 735
(citations omitted). A motion that merely states general
conclusions of law without substantiating allegations with
facts is without legal merit. Loum v. Underwood, 262
F.2d 866, 867 (6th Cir. 1959); United States v.
Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).
warrant relief under 28 U.S.C. § 2255 because of
constitutional error, the error must be one of constitutional
magnitude which had a substantial and injurious effect or
influence on the proceedings. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (citation omitted) (§ 2254
case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th
Cir. 1994). See also United States v. Cappas, 29
F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to
a § 2255 motion). If the sentencing court lacked
jurisdiction, then the conviction is void and must be set
aside. Williams v. United States, 582 F.2d 1039,
1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978).
To warrant relief for a non- constitutional error, petitioner
must show a fundamental defect in the proceeding that
resulted in a complete miscarriage of justice or an egregious
error inconsistent with the rudimentary demands of fair
procedure. Reed v. Farley, 512 U.S. 339, 354 (1994);
Grant v. United States, 72 F.3d 503, 506 (6th Cir.),
cert. denied, 517 U.S. 1200 (1996). In order to
obtain collateral relief under §2255, a petitioner must
clear a significantly higher hurdle than would exist on
States v. Frady, 456 U.S. 152 (1982).
§ 2255 Petitioner claims he was denied his sixth
amendment right to effective assistance of counsel, it is
noted that an attorney is presumed to have provided effective
assistance, and the Petitioner bears the burden of showing
that the attorney did not, Mason v. Mitchell, 320
F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that
specific acts or omissions by his attorney were deficient and
that the attorney failed to provide “reasonably
effective assistance, ” Strickland v.
Washington, 466 U.S. 668, 687 (1987), which is measured
by “prevailing professional norms, ” Rompilla
v. Beard, 545 U.S. 374, 380 (2005). If Petitioner
crosses this evidentiary hurdle, he must then show “a
reasonable probability that, but for [the attorney's acts
or omissions], the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694. In
other words, he must show that he was prejudiced by the
attorney's deficient representation:
To succeed on an ineffective assistance claim, a defendant
must show that counsel's deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ]
review of counsel's performance is “highly
deferential.” Id. at 689, 104 S.Ct. 2052. [The
court must] “judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.”
Id. at 690, 104 S.Ct. 2052. The defendant
“must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment.” Id. To establish
“prejudice, ” a “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. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694, 104 S.Ct. 2052.
“The likelihood of a different result must be
substantial, not just conceivable.” H ...