Opinion
Civil No. 02-980 ADM Criminal No. 00-54 (03) ADM/AJB
July 5, 2002
Valerio Perez-Penuelas, pro se.
Nathan P. Peterson, Esq. Assistant United States Attorney, for and on behalf of the Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner Valerio Perez-Penuelas's ("Petitioner") Motion to Vacate, Set Aside, Grant a New Trial, or Correct Sentence [Doc. No. 53], pursuant to 28 U.S.C. § 2255. Petitioner claims that (1) his counsel was ineffective for failing to file an appeal within 10 days of sentencing, pursuant to Fed.R.App.P. 4(b); (2) he was denied protection of the "safety valve" as a first time offender under 18 U.S.C. § 3553(f); and (3) he deserves consideration for sentence reduction under to U.S.S.G. § 5K2.0 because he did not challenge his deportation. The United States ("Respondent") objects to Petitioner's Motion, asserting that Petitioner's claims are time-barred and without merit. For the reasons below, Petitioner's Motion is denied.
II. BACKGROUND
On May 11, 2000, Petitioner pled guilty to conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. Petitioner understood that the minimum sentence he could receive was five years and that the maximum sentence was forty years. Plea Agreement at 2. Petitioner further understood that the application of the Sentencing Guidelines is a matter falling solely within the Court's discretion. Plea Agreement at 3.
On August 1, 2000, Petitioner was sentenced by this Court to sixty months, which was the statutory minimum required by the sentencing guidelines. Petitioner's applicable guideline sentencing range was below the statutory minimum, allowing him to be eligible for the "safety valve." However, Petitioner refused to make a proffer to the government, so he did not qualify for a sentence reduction. During the sentencing hearing, both the Court and Petitioner's attorney inquired as to whether Petitioner wished to change his position in regard to the proffer. The Court informed Petitioner that his sentence could be decreased with a proffer, but the Petitioner indicated on the record that he did not want to make one. Tr. at 6-7.
The Government's Memorandum in Opposition to § 2255 Petition mistakenly states the date of sentencing as August 1, 2002.
At sentencing, Petitioner was informed of his right to appeal within ten days. Tr. at 10. On April 2, 2001, eight months later, he filed a "Notice of Appeal," in which he alleged ineffective representation [Doc. No 47]. His appeal was subsequently dismissed as untimely by this Court [Doc. No. 50] and by the Eighth Circuit [Doc. No. 52]. On May 6, 2002, Petitioner filed the present pro se Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255.
III. DISCUSSION
A. Standard of Review under § 2255
A prisoner may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence if the sentence was imposed in violation of the United States Constitution or federal statutory laws. A petitioner must show that the error, if left uncorrected, would result in a complete miscarriage of justice or in a "conviction of one innocent of the crime." McCleskey v. Zant, 499 U.S. 467, 494 (1991). The petitioner may not raise constitutional issues for the first time on collateral review without establishing both cause for the procedural default and actual prejudice resulting from the error. See United States v. Frady, 456 U.S. 152, 167-68 (1982). A showing of ineffective assistance of counsel satisfies both cause and prejudice, but the movant faces a heavy burden. See United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
B. Time-Barred Motion
Motions made under § 2255 must be filed within one year of the date on which the judgement becomes final. 28 U.S.C.A § 2255(1). Judgment was filed in Petitioner's case on August 4, 2000. Petitioner's Motion was made on May 6, 2002, nine months after the expiration of the statute of limitations. As his Motion is untimely, it is dismissed.
C. Motion Without Merit
Had Petitioner's Motion been filed within the statute of limitations, it still would not have been granted because the claims he raises lack merit. His first contention is ineffective assistance of counsel. To prevail on this claim, a petitioner must demonstrate that (1) the counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the second prong of Strickland, Petitioner must show that "but for counsel's unprofessional errors, the results of the proceeding would have been different." Id. at 688. In essence, Petitioner must demonstrate that he would have prevailed on the underlying issues had they been raised.
Petitioner asserts that his counsel was ineffective for failing to file a direct appeal within ten days of final sentencing. However, Petitioner had no grounds for an appeal. He received the statutory minimum sentence, which was the lowest one that could have been imposed for his offense. Additionally, Petitioner signed a plea agreement stipulating the sentence range; he cannot subsequently challenge the applicability of that provision. "A defendant may not challenge an application of the Guidelines to which he agreed in a plea agreement." U.S. v. Barrett, 173 F.3d 682, 684 (8th Cir. 1999). See also U.S. v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995). Given this legal standard, Petitioner would not have prevailed had his attorney filed a direct appeal.
There is no merit to Petitioner's second claim regarding the "safety valve." He failed to make a proffer, despite repeated opportunities. He therefore was ineligible for a sentence reduction under that provision. At sentencing, this Court and Petitioner's counsel inquired on the record whether Petitioner had changed his position about the proffer, but he indicated that he was still unwilling to make one. Tr. at 6-7. In the absence of a proffer, Petitioner could not have been sentenced below the statutory minimum of 60 months.
Petitioner's third claim is that he deserves a downward departure due to his alien status. In United States v. Lopez-Salas, 266 F.3d 842, 846-51 (8th Cir. 2001), the Eighth Circuit held that a downward departure based on alien status is "only appropriate in exceptional circumstances, such as where there is a substantial, undeserved increase in the severity of conditions of confinement, which would affect a substantial portion of a defendant's sentence." Id. at 850. In the present instance, Petitioner contends that, as an alien, he is precluded from participating in a prison drug program or living in a half-way house prior to release. These matters are under the discretion of the BOP. Unless Petitioner's conditions of confinement were unusual or atypical, this Court may not grant a downward departure. Id. at 850. As it stands, Petitioner's alien status does not entitle him to a sentence below the statutory minimum of sixty months.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 53] is DENIED.