Opinion
Case No. 2:01-CV-00031PGC
May 12, 2003
ORDER
Before the court is petitioner Elmer Salvador Rodriguez's motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Petitioner filed the motion on January 11, 2001, and was granted an extension to file a supporting memorandum by March 10, 2001. The case was transferred to the undersigned judge on July 16, 2002.
28 U.S.C. § 2255 (West Supp. 2000).
United States District Judge Dee Benson originally sentenced petitioner on June 16, 1998, to a term of two hundred thirty-five months in prison, followed by sixty months supervised release after he was convicted of possessing cocaine, methamphetamine, and heroin with intent to distribute. At a second sentencing hearing on August 28, 1998, petitioner objected to a sentencing enhancement that had been applied because of his possession of a firearm, and Judge Benson reduced petitioner's sentence to one hundred eighty-eight months.
Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 by a Prisoner in Federal Custody ("Memo in Support") at 2.
Id.
On August 23, 1998, Petitioner appealed his conviction alleging insufficient evidence to support his conviction. On October 13, 1999, the Tenth Circuit upheld his conviction, finding that the evidence was sufficient to show that petitioner had possessed cocaine, methamphetamine, and heroin with intent to distribute.
U.S. v. Salvador-Rodriguez, 198 F.3d 260, 1999 CJ C.A.R. 5762 (10th Cir. 1999) (TABLE, TEXT IN WESTLAW, NO. 98-4153).
Because the petitioner had filed a direct appeal of his case to the Tenth Circuit Court of Appeals, the time period for filing the § 2255 motion was tolled until ninety days following the Circuit Court's disposition of the case (petitioner did not file a petition for a writ of certiorari with the Supreme Court). Therefore, under United States v. Burch, the one-year statute of limitations began running ninety days after October 13, 1999, and petitioner had until January 11, 2001 to file this motion with this court. He filed on that date.
See 202 F.3d 1274, 1279 (10th Cir. 2000).
Petitioner's arguments in support of his motion fail. First, he argues that the government failed to present evidence at sentencing establishing the quantity of drugs he possessed and, moreover, that the court failed to make specific findings at sentencing as to the quantity of drugs he allegedly possessed. However, under United States v. Cruz Camacho, a court may base a sentence on a drug quantity which the court finds the defendant "reasonably foresaw or which fell within the scope of his particular agreement with the co-conspirators." The court's determination of assignable drug quantity will not be disturbed unless it "has no record support" or the reviewing court is "firmly convinced that an error has been made."
137 F.3d 1220, 1225 (10th Cir. 1998).
United States v. Sloan, 65 F.3d 149, 151 (10th Cir. 1995).
In this case, the government presented substantial evidence at trial. Similarly, the pre-sentence report reflects substantial detail regarding the quantity of drugs at issue. Petitioner failed to object to the drug quantities stated in the pre-sentence report, even after the sentencing court specifically asked defense counsel if there were any objections. Because there is support in the record for the quantity of drugs on which the court based petitioner's sentence, and because, further, petitioner did not object at sentencing to the amount of drugs stated in the pre-sentencing report, petitioner is not entitled to relief based on this argument.
The court also denied relief based on petitioner's next argument. Petitioner claims he had ineffective counsel at sentencing because counsel failed to make the government meet its burden of proof, failed to request the court to make a specific finding as to the drug quantity, and failed to present evidence that petitioner consumed most of the drugs he obtained. However, to prevail on a § 2255 claim based on ineffective assistance of counsel, petitioner must demonstrate both that his counsel's performance was "constitutionally deficient, and that this deficient performance prejudiced him." Thus, the petitioner must demonstrate that his "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
United States v. Harfst, 168 F.3d 398, 402 (10th Cir. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Strickland at 688.
Id. at 694.
Petitioner's counsel's performance did not fall below an objective standard of reasonableness either at trial or sentencing. Throughout trial, petitioner's counsel argued and presented evidence related to petitioner's claim that he had a minimal role in the drug trafficking operation. Further, at sentencing, counsel reiterated this claim of minimal participation to the judge and requested a reduction based on the minimal participation. Petitioner's counsel admittedly could have challenged the drug amounts in the pre-sentence report, but his failure to do so does not fall below an objective standard of reasonableness. The court determines this particularly because there is no reasonable probability, in light of both the evidence and the sentencing judge's observations regarding petitioner's significant role in the drug trafficking operation, that counsel's objection to the quantities in the pre-sentence report would have made a difference in petitioner's sentence. Moreover, an objection to the quantity of drugs might have been at cross purposes with the argument that petitioner was a minor participant. Additional evidence on drug quantities might have established more directly petitioner's role in the offense.
Petitioner's next argument for relief from his sentence also fails. Petitioner contends that he should have received a two-level sentence reduction based on acceptance of responsibility. However, the Tenth Circuit has held that "pleading not guilty and requiring the government to prove guilt at trial demonstrate[s] denial of responsibility." Here, not only did petitioner elect to go to trial, but he also attempted to minimize his role in such a way as to assert his innocence on the charges against him. As a result, he clearly did not accept responsibility, and his counsel could not have been ineffective in his handling of this issue.
United States v. Portillo-Valenzuela, 20 F.3d 393, 394-95 (10th Cir. 1994), cert. denied, 513 U.S. 886 (1994).
For the reasons stated above, the Court DENIES petitioner's motion to vacate his sentence under 28 U.S.C. § 2255. This case is DISMISSED with prejudice in its entirety.