Opinion
Case No. 2:04 CV 402 TC
June 2, 2004
ORDER
Mr. Epifanio Reyna Garcia has filed a motion pursuant to 28 U.S.C. § 2255. Pointing to a number of errors allegedly made by his attorney during the sentencing phase of his criminal case, Mr. Reyna Garcia claims that he received ineffective assistance of counsel. For the reasons described below, the court denies Mr. Reyna Garcia's motion.
Background
Mr. Reyna Garcia, and a co-defendant, Victor Mendoza, were indicted on two counts of possession with intent to distribute methamphetamine and heroin, and aiding and abetting, violations of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2. On June 4, 2003, Mr. Reyna Garcia plead guilty to one count of the indictment. On October 24, 2003, the court sentenced Mr. Reyna Garcia to 51 months in custody and 60 months of supervised release. (Case No. 03 CR 171-001, Dkt. No. 60) He did not take a direct appeal.
Because of the amount of controlled substances involved in the offense, 519 grams of pure methamphetamine and 94.8 grams of pure heroin, Mr. Reyna Garcia was facing a minimum mandatory sentence often years. See 18 U.S.C. § 841 (b). The day before the sentencing hearing, the United States moved to have the court sentence Mr. Reyna Garcia below the minimum mandatory sentence based on his substantial assistance. (Dkt. No, 60). The court granted the United States' motion, although the court noted that the departure was substantial. (Draft Transcript of Sentencing Hearing, p. 3)
Discussion
Mr. Reyna Garcia raises a number of alleged errors by his counsel. He claims that he was denied the "safety valve" provision which would allow the court to grant a sentence below the minimum mandatory sentence. In fact, the court, pursuant to 18 U.S.C. § 3553(e) did impose a sentence below the statutory mandatory minimum. Mr. Reyna Garcia argues that he was promised a reduction in his guideline range as a "minimum participatory." (Petition at p. 4)
Finally, Mr. Reyna Garcia claims that he was told that he would receive a sentence of 41 months, when, in fact, he received 51 months. But at the Change of Plea Hearing, and as shown by the document he executed at that hearing, the court made clear to Mr. Reyna Garcia that the court would decide the appropriate sentence and that any estimates concerning his possible sentence by either the government or his attorney were just that: estimates.
To demonstrate ineffective assistance of counsel, "a petitioner must establish both that his attorney's representation was deficient and that he was prejudiced by that deficiency." James v. Gibson, 211 F.3d 543, 555 (10th Cir. 2000), cert. denied, 531 U.S. 1128 (2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The standard applies to sentencing proceedings and plea hearings as well as at trial. U.S. v. Glover, 97 F.3d 1345, 1349 (10th Cir. 1996). To succeed on the deficiency prong, a petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." James, 211 F.3d at 555 (citing Strickland, 466 U.S. at 689). "Judicial scrutiny of counsel's performance is highly deferential." Id. To succeed on the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. There is a strong presumption that counsel provided effective assistance, and a § 2255 petitioner has the burden of proof to overcome that presumption. James, 211 F.3d at 555.
The record in this case shows that, contrary to his claims, Mr. Reyna Garcia received effective assistance of counsel. Instead of the mandatory minimum sentence of 10 years, Mr. Reyna Garcia received a sentence of 51 months, less than half the mandatory term. His various arguments are either erroneous or simply without merit. Accordingly, his motion is DENIED.