United States v. Almanzar

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Petitioner Roger Jose Almanzar (“Almanzar”) has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 (the “Petition”), alleging ineffective assistance of counsel. D. 876. For the reasons discussed below, the Court DENIES the Petition.

         II. Standard of Review

         An incarcerated person may seek post-conviction relief under § 2255 if his sentence “(1) was imposed in violation of the Constitution; (2) was imposed by a court that lacked jurisdiction; (3) exceeded the statutory maximum; or (4) was otherwise subject to collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). It is the petitioner's burden to make out a claim for such relief. Id.

         III. Factual and Procedural Background

         On November 29, 2012, Almanzar, and numerous co-defendants, were named in an indictment (and, later, a superseding indictment filed on April 17, 2014)^[1] charging him with conspiring to possess with intent to distribute and to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846. D. 3; D. 294. Part of the allegations for this conspiracy charge was that Almanzar had distributed cocaine to one of his co-defendants, Radhames Pena (“Pena”). D. 503 at 9. Almanzar and Pena were tried together in a bench trial that began on June 9, 2014. D. 503-08. At the trial, Almanzar conceded his guilt as to the conspiracy charge, but disputed his culpability for five kilograms of cocaine or more, which would trigger a minimum mandatory sentence of ten years. D. 503 at 13-14. Based upon the evidence presented during the course of the trial, Court found Almanzar guilty of the conspiracy charged, that the conspiracy involved five kilograms or more of cocaine and that such quantity was attributable to Almanzar. D. 508 at 7.

         At the October 9, 2014 sentencing, the Court found that the applicable base offense level was 34, for 15-50 kilograms of cocaine attributable to Almanzar and applied a two-level downward variance for a pending amendment to the United States Sentencing Guidelines that had not yet gone into effect. D. 569 at 7; D. 569-1 at 4. With a Criminal History Category of III, the advisory guideline sentencing range (“GSR”) was 151-188 months, above the 120-month minimum mandatory sentence that applied. D. 569-1 at 4. Although the government recommended a substantially higher sentence of 188 months, D. 569-1 at 4, the Court imposed a sentence of 140 months (below the GSR, but above the minimum mandatory sentence), five years of supervised release and a $100 special assessment. D. 566, 569. Almanzar filed a timely notice of appeal. D.576. On February 19, 2016, the First Circuit affirmed his conviction in a summary disposition. D. 841. Almanzar has now filed the Petition, D. 876, and the Court now turns to the grounds he raises in support of the Petition.

         IV. Grounds for Relief

         Petitioner contends that he is entitled to relief under § 2255 because he allegedly received ineffective assistance counsel in regard to his attorney's alleged failure to explain a plea offer from the government or explain his potential sentencing exposure after trial; and for his failure to move to sever his trial from that of his co-defendant, Pena.

         V. Discussion

         A. Ineffective Assistance of Counsel

         To demonstrate ineffective assistance of counsel, a petitioner must show that: “(1) ‘counsel's representation fell below an objective standard of reasonableness' and (2) ‘there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.'” United States v. Constant, 814 F.3d 570, 578 (1st Cir. 2016) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).

         The reasonableness of the attorney's representation is viewed “as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. Judicial scrutiny of a counsel's representation and performance must be “highly deferential” and the Court should make “every effort . . . to eliminate the distorting effects ...