The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Doroteo Estrada-Jasso's ("Estrada") Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Docket No. 1 in CV-09-354-E-BLW). Having reviewed the Motion, the Government's Response, (Docket No. 4) and Estrada's Reply (Docket No. 8)*fn1 as well as the record in the underlying criminal case, the Court enters the following Order dismissing the § 2255 Motion.*fn2
REVIEW OF 28 U.S.C. § 2255 MOTION
A. Background and Summary of Issues
On December 8, 2005, Estrada was charged along with two other individuals with conspiracy to possess/distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). Estrada was also charged with possession with intent to distribute or distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
On October 31, 2006, the parties entered into a Plea Agreement (Docket No. 67) in which the Government agreed to dismiss the possession count in return for Estrada's plea of guilty to the conspiracy count. The Factual Basis portion of the Plea Agreement stated that between January 2002 and April 2005, Estrada agreed with others to possess with intent to distribute in excess of 500 grams of methamphetamine and that he knowingly delivered to those individuals in excess of one kilogram of methamphetamine.
On November 6, 2006, at the time set for entry of a plea of guilty to the conspiracy count, the Court addressed a letter received from Estrada in which Estrada expressed his dissatisfaction with his then-current counsel. Docket No. 72. The Court found that irreconcilable differences existed between Estrada and counsel and granted Estrada's request for appointment of new counsel. Minutes (Docket No. 75). The Court also granted the Government's oral motion to withdraw the Plea Agreement. Id.
With the advice of new counsel, Estrada entered into a second Plea Agreement (Docket No. 92) that was identical to the first. He again agreed to plead guilty to the conspiracy count in return for the Government's agreement to dismiss the possession count. On December 15, 2006, Estrada entered a plea of guilty to the conspiracy count before U. S. Magistrate Larry M. Boyle, and the case was set for sentencing.
Prior to sentencing, defense counsel filed his Objections/Response to Presentence Report (Docket No. 110) which contained detailed challenges to the drug quantity calculation. The Presentence Report had found the drug quantity to be 29 kilograms for a base offense level of 38. Counsel argued that the base offense level should be 32 based on the quantity of at least 500 grams but less than 1.5 kilograms of methamphetamine that he agreed he sold. He further objected to the 4-level increase for being a leader or organizer and argued that his criminal history category of V overstated his actual criminal history.
Counsel also filed a Sentencing Memorandum (Docket No. 112) in which he supported his position on the drug quantity and role issues and urged a sentence below the 360 to life range determined by the Probation Officer. Counsel specifically argued factors such as Estrada's then-current age (46), his age at the onset of his criminal history (37, with first felony at 44), and entitlement to a sentence similar to that expected for his two co-Defendants. He concluded with a request for a sentence of 120 months, the statutory minimum for the offense of conviction.
On March 12, 2007, the Court heard testimony from Estrada's co-Defendants and two Idaho State Police officers involved in the investigation of the drug conspiracy. Defense counsel again requested a sentence of 120 months. The Court overruled the objections, determined that the appropriate total offense level was 42*fn3 resulting in a guideline range of 360 months to life, and imposed a sentence of 360 months.
On March 19, 2007, counsel filed a notice of appeal (Docket No. 117) on behalf of Estrada and a motion to withdraw (Docket No. 118). On November 28, 2008, the appeal was dismissed on the grounds that the waiver of his right to appeal contained in the Plea Agreement was knowing and voluntary. USCA Memorandum (Docket No. 140). Estrada thereafter filed his timely § 2255 Motion.
In his § 2255 Motion and supporting Memorandum, Estrada alleges that his plea was coerced and that he received ineffective assistance of counsel at both the trial and appellate level. He requests that he be resentenced at the "correct" guideline range. He refers to "significant documentation" and "significant information" in support of his ineffective assistance of counsel claims. § 2255 Mem. at 2; 6; 8.
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief."
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order."
The Court may dismiss a § 2255 motion at other stages of the proceeding such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then proceeds to a determination under Rule 8 of whether an evidentiary hearing is required. The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the ...