United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER, UNITED STATES DISTRICT JUDGE.
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.
Standard of Review
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.
Factual and Procedural Background
November 29, 2012, Almanzar, and numerous co-defendants, were
named in an indictment (and, later, a superseding indictment
filed on April 17, 2014) 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.
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
Grounds for Relief
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.
Ineffective Assistance of Counsel
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)).
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