Criminal Action No. 99-170 SECTION "N"
July 20, 2000
ORDER AND REASONS
Before the Court is pro se petitioner Jacqueline Thompson's motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, petitioner's motion is DENIED.
On July 21, 1999, Thompson pled guilty to conspiracy to distribute heroin. On February 16, 2000, Thompson was sentenced to a term of imprisonment of 91 months. Thompson did not appeal. Subsequently, Thompson filed this motion for post-conviction relief pursuant to 28 U.S.C. § 2255 alleging that: (1) her guilty plea was made with the understanding that her sentence would be lower than it actually was, (2) her attorney provided ineffective assistance, and (3) her right to a direct appeal was denied because she was not notified about an alleged sentencing error. The Government argues that: (1) Thompson was sentenced under the appropriate guidelines for the offenses set out in her signed factual basis, (2) Thompson's counsel was particularly effective in obtaining a twenty-five percent sentence reduction, and (3) Thompson was not denied any appellate rights because the alleged sentencing error does not exist.
First, Thompson claims that her guilty plea was not knowing and voluntary. A plea of guilty must, as a matter of due process, be a voluntary, knowing, and intelligent act. See U.S. v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). Thus, the Constitution requires that a defendant be informed of and understand the maximum prison term and fine of the offense charged. Id. The defendant has the burden of proving the involuntary nature of his plea. See DeVille v. Warden Whitley, 21 F.3d 654, 659 (5th Cir. 1994); Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir. 1986).
In the instant case, Thompson complains that her plea was not knowing and voluntary because she thought she was being sentenced for conspiring to distribute "not more than one kilogram of heroin." Factual Basis at 1. Thompson was sentenced for conspiring to distribute this amount. The Court sentenced Thompson at guideline offense level 32, which includes a quantity range of at least one kilogram but less than three kilograms of heroin. See U.S.S.G. § 2D1.1(4). Clearly, offense level 32 encompasses the amount of heroin Thompson possessed. Accordingly, the Court finds Thompson's assertion to be factually erroneous and without merit.
Secondly, Thompson argues that she received ineffective assistance of counsel. To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Thompson must show: (1) her counsel's performance was deficient, and (2) such deficient performance prejudiced her defense. Id. at 687. Under the deficiency prong, a defendant must demonstrate that his counsel's actions "fell below an objective standard of reasonableness." Id. at 688. The prejudice prong requires strong proof by defendant of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Failure to prove either deficient performance or prejudice is fatal to an ineffective assistance claim. Id. at 697. In the context of a challenge to a guilty plea based on ineffective assistance, a defendant must show a reasonable probability that she would not have pleaded guilty with the benefit of competent counsel. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Thompson claims that her attorney was inadequate because he only met with her twice and because he was not present when she cooperated with the Government. The Court does not find that these allegations rise to the level of deficient representation. In fact, the Court finds that Thompson's attorney was particularly effective. Thompson's attorney obtained a recommendation that she receive a reduction of twenty-five percent off the bottom of her guideline sentence. Thompson faced 121 to 151 months of imprisonment, but was sentenced to only 91 months. Accordingly, the Court finds that Thompson does not satisfy either prong of the Strickland lest, and her claim of ineffective assistance of counsel is without merit.
Petitioner's third assignment of error is that she was denied her right to a direct appeal because she was precluded from discovering an alleged sentencing error until she received a copy of her pre-sentence investigation report on May 11, 2000. As the Court noted, supra, Thompson's pre-sentence investigation did not contain an error. Moreover, petitioner has availed herself of her right to seek post-conviction relief under 28 U.S.C. § 2255. Accordingly, the Court finds that Thompson's claim that she was denied the right to appeal is without merit. For the reasons set forth above,
IT IS ORDERED that Defendant Jacqueline Thompson's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 is DENIED.