MEMORANDUM AND ORDER
This matter is before the Court on petitioner Jose Alfredo Valencia's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Filing No. 51) and his motion for disclosure of the character of a U.S. District Court (Filing No. 52). The magistrate judge reviewed Valencia's motions and issued a report and recommendation (Filing No. 57, hereafter "RR"). Thereafter, Valencia filed a statement of objections to the magistrate judge's report and recommendation (Filing No. 66) and a motion for appointment of counsel (Filing No. 67).
In support of his section 2255 motion, Valencia raises several grounds for which he claims he is being unlawfully held in federal custody. Valencia makes four separate claims of ineffective assistance of counsel. After a de novo review of the record, the Court finds no merit in Valencia's claims and will deny the section 2255 motion. Because the Court finds no merit in the section 2255 claims, the Court will also deny his motion for appointment of counsel.
II. Factual Background
Jose Alfredo Valencia was indicted by a grand jury for conspiracy to distribute amphetamine on June 18, 1998 (Filing No. 1). Pursuant to a plea agreement, he pleaded guilty and, on June 25, 1999, this Court sentenced him to 70 months imprisonment with three years supervised release thereafter (Filing No. 48). On June 24, 1999, Valencia signed a notice of intent not to appeal his conviction (Filing No. 49). In this notice, Valencia stated that he had been advised of his right to appeal, both by the Court and by his attorney. Id.
On September 27, 1999, Valencia filed a motion pursuant to 28 U.S.C. § 2255, alleging that his attorney was ineffective for failing to challenge the character of the district court's criminal jurisdiction, for failing to challenge the interpretation of a prior felony conviction, for failing to obtain downward departures, and for failing to assert Valencia's rights under the Vienna Convention (Filing No. 51). Valencia also filed a motion for disclosure of the character of a United States District Court (Filing No. 52). Valencia's section 2255 motion was referred to the magistrate judge on October 1, 1999 (Filing No. 54). On November 10, 1999, the magistrate judge recommended that the Court deny both of Valencia's motions (Filing No. 57).
Before the Court could make a final ruling on the section 2255 motion, Valencia filed a motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a) (Filing No. 58). The motion requested that the Court vacate the magistrate judge's report and recommendation and grant a dismissal so that Valencia would have better opportunity to determine whether any other meritorious grounds for a section 2255 motion existed. Id. On February 8, 2000, the Court denied the motion for voluntary dismissal (Filing No. 61). The Court noted that Valencia seemed to be under the belief that dismissal of his section 2255 motion would not subject him to the more stringent requirements for successive section 2255 motions. Id. The Court's order instructed Valencia to file another motion to dismiss if he desired, but warned him that, if he did so, he risked dismissal of any future section 2255 petitions on the ground that it might be considered a successive petition. Id.
On March 22, 2000, Valencia sent a letter to the Court requesting appointment of counsel to assist him with his section 2255 motion (Filing No. 64). The Court has construed this letter to also be a withdrawal of Valencia's earlier motion to dismiss. The Court made this determination because of Valencia's request for additional time to file his objections to the magistrate judge's report and recommendation (Filing No. 65). Finally, on June 9, 2000, Valencia filed these objections to the magistrate judge's report and recommendation and his motion for appointment of counsel (Filing Nos. 66-67).
III. Standard of Review under 28 U.S.C. § 2255
Under 28 U.S.C. § 636(b)(1), a district court is required to review de novo those portions of a magistrate judge's report and recommendation which are objected to by a party. United States v. Storey, 990 F.2d 1094, 1097 (8th Cir. 1993).
Section 2255 of Title 28 of the United States Code (hereafter "section 2255") provides individuals in federal custody with a means of collaterally attacking a sentence imposed after conviction. The purpose of section 2255 is to require an individual in federal custody to exhaust his remedies in the district and circuit courts in which he was convicted and sentenced and to apply to the United States Supreme Court on certiorari from a denial of such remedies, before seeking release on habeas corpus. Thus, the grounds for collateral attack of a sentence pursuant to section 2255 are narrowly limited. United States v. Addonizio, 442 U.S. 178, 184 (1979). The Supreme Court has "long and consistently affirmed that a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). A petitioner has the burden of establishing by a preponderance of the evidence that he is entitled to relief under section 2255. Holloway v. United States, 960 F.3d 1348, 1354 (8th Cir. 1992).
A petitioner's failure to raise errors on direct appeal generally precludes the assertion of those errors for the first time in a collateral attack under section 2255. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Where a section 2255 motion rests on issues not raised at trial on direct appeal, the petitioner bears the burden of demonstrating both "cause" to excuse the procedural default and that "actual prejudice" will result from the errors at issue. Frady, 456 U.S. at 167. Absent unusual circumstances, a showing of ineffective assistance of counsel satisfies both cause and prejudice. Id.
To establish ineffective assistance of counsel within the context of section 2255, a petitioner faces a heavy burden. The Eighth Circuit has declared:
A claim of ineffective assistance of counsel [under section 2255] must be scrutinized under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, in order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must prove both that his counsel's representation was deficient and that the deficient performance prejudiced the defendant's case. The first part of the test is met when the defendant shows that counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibit[ed] under similar circumstances." The second part is met when the defendant shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Apfel, 97 F.3d at 1076 (citations omitted). Because a petitioner's failure to establish prejudice can be dispositive of a section 2255 habeas corpus petition, the Court need not address the reasonableness of an attorney's representation if the petitioner cannot establish prejudice. Id., citing Montanye v. United States, 77 F.3d 226, 230 (8th Cir. 1996).
In his petition, Valencia raises four ineffective assistance of counsel claims. First, he contends that counsel was ineffective when he failed to challenge the character of the Court and file a motion for disclosure of the character of the Court (Filing Nos. 51-52). Valencia argued that the Court did not have jurisdiction over the offense that was committed. The magistrate judge noted that the United States Code provides that there shall be a United States District Court in each federal judicial district in the United States. Id., quoting 28 U.S.C. § 132. The magistrate judge also noted that United States District Courts have original jurisdiction for prosecution of defendants who violate the laws of the United States (RR at 5) (citing 18 U.S.C. § 3231). The record indicates that Valencia was involved in a conspiracy to distribute amphetamine, in violation of 21 U.S.C. § 841(a)(1) and 846, within the District of Nebraska (Filing No. 50). This violation occurred within the jurisdiction of the United States District Court for the District of Nebraska. Therefore, Valencia's claim challenging the jurisdiction of this Court is meritless. Accordingly, the Court must dismiss this claim.
Second, Valencia claims that his attorney was ineffective because counsel failed to challenge the interpretation of his prior conviction as an aggravated felony (Filing No. 51). In his brief, Valencia argues that the original charge brought against him should have been under 8 U.S.C. § 1326(a) instead of 8 U.S.C. § 1326(b)(2) (defendant's brief in support of application for writ of habeas corpus at 10). Valencia, however, was charged under 21 U.S.C. § 846, and admits in his petition that his contention concerning the section 1326 charge "does not applied [sic] to this case." Regardless, as the magistrate judge found, the decision to prosecute, and what charges are filed generally rest with the prosecution's discretion, so long as the prosecution has probable cause to believe that the accused committed the offense defined by the statute (RR at 6) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). Valencia pleaded guilty to the charge under 21 U.S.C. § 846, thereby subjecting himself to that charge. Id. Therefore, Valencia's claim challenging the interpretation of his prior conviction is without merit. Accordingly, the Court must also dismiss this claim.
Third, Valencia claims that his counsel was ineffective because counsel failed to obtain downward departures on the grounds of ineligibility programs. Presumably, Valencia is referring to the discretion given of a sentencing court to impose a sentence outside the range of the Sentencing Guidelines if mitigating circumstances exist. See 18 U.S.C. § 3553(b).
It should be first noted that Valencia has procedurally defaulted by not appealing the sentencing issue earlier. Regardless, the section 2255 motion did not clarify how this argument related to Valencia's case, nor did it demonstrate the existence of any type of mitigating circumstances. As the magistrate judge noted, Valencia voluntarily agreed that the base offense level of 30 was appropriate (RR at 6). Valencia also acknowledged that he received a downward departure of 3 for acceptance of responsibility, and that 70 months imprisonment was the minimum term for an offense level of 27. Id. Further, the magistrate judge found that Valencia's attorney assisted him in obtaining a lower base offense level and in objecting to an upward departure. Id.
In his statement of objection to the magistrate judge's report and recommendation, Valencia argues that his status as a foreign citizen prevented him from being eligible for the drug rehabilitation program that could have reduced his sentence by twelve months (Filing No. 66 at 4-5). He asserts that the disparate treatment afforded foreign inmates should have been brought to the attention of the Court by his attorney. Id. He further argues that the Court should take this discrepancy into account and consider a reduction in his sentence. Id. However, the Eighth Circuit has noted:
We have previously recognized that 18 U.S.C. § 3621(e)(2) vests broad discretion in the BOP to determine which individuals, among the group of statutorily eligible inmates convicted of nonviolent offenses, are appropriate candidates for early release. See Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998). . . . The statute states only that the prison term of an inmate convicted of a nonviolent offense "may be reduced by the Bureau of Prisons" (emphasis added), see 18 U.S.C. § 3621(e)(2)(B). The language is discretionary and does not mandate that the [Bureau of Prisons] grant a sentence reduction to any particular inmate or class of inmates. Cf. Morgan v. Rabun, 128 F.3d 694, 699 (8th Cir. 1997).Bellis v. Davis, 186 F.3d 1092, 1094 (8th Cir. 1999). Therefore, even assuming that Valencia did not procedurally default on this claim, he is not entitled to relief. Accordingly, the Court must also dismiss this claim.
Fourth, Valencia asserts that his counsel was ineffective because he did not exercise his rights under the Vienna Convention. Again, Valencia has procedurally defaulted on this claim. As the magistrate judge noted, if a prisoner seeks to raise a claim of violation of rights under the Vienna Convention for the first time on federal habeas review, that claim has procedurally defaulted. See Breard v. Greene, 523 U.S. 371, 375 (1998). However, the Court will still address the elements of Valencia's claim.
The magistrate judge observed the Vienna Convention directs authorities to inform individuals arrested in foreign countries that they have a right to contact the consular post of their country. Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. Valencia, a Mexican citizen with permanent resident alien status, alleges that he did not exercise his right to communicate with the Mexican consular post. He does not allege, however, that he was not informed of the right to communicate with the consul, only that he failed to exercise the right. This fact undermines Valencia's claim that counsel was ineffective in this respect.
Regardless, Valencia can still make a claim that his counsel affected his decision to contact the consul, and that discussion with the consul could have caused him to reject the plea bargain. In that case, Valencia would certainly have made a showing of deficiency in counsel's assistance, but he still would not have shown prejudice from the failure to exercise his rights under the Vienna Convention. The Supreme Court has stated that "to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Valencia has made no showing that any discussion with the Mexican consul would have resulted in the rejection of the guilty plea. The lack of prejudice is also demonstrated by Valencia receiving a reduction in the charges against him and by the downward departure that he received as a result of his voluntary plea agreement. Accordingly, the Court must also dismiss this claim.
V. Motion for Appointment of Counsel
Defendant has requested court-appointed counsel to represent him in this matter (Filing No. 67). The Eighth Circuit has ruled that "there is no general right to counsel in post-conviction habeas proceedings for criminal defendants." United States v. Craycraft, 167 F.3d 451, 455 (8th Cir. 1999) (citing Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994)). Because the Court finds no merit in any of the claims asserted by Valencia pursuant to 28 U.S.C. § 2255, the motion for appointment of counsel is also denied.
IT IS THEREFORE ORDERED that
1. The statement of objections to the magistrate judge's report and recommendation (Filing No. 66) filed by petitioner Jose Alfredo Valencia is overruled;
2. The magistrate judge's report and recommendation (Filing No. 57) is adopted in its entirety;
3. The motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Filing No. 51) filed by Valencia is denied; and
4. The motion for appointment of counsel (Filing No. 67) filed by Valencia is denied.