Opinion
Case No. 98-40021-01-DES, 01-3328-DES
January 4, 2002
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 132) brought pursuant to 28 U.S.C. § 2255. Defendant alleges two grounds for relief: (1) ineffective assistance of counsel and (2) an Apprendi claim. Defendant requests an evidentiary hearing on his ineffective assistance of counsel claim. For the following reasons, the court is compelled to grant defendant's request for an evidentiary haring.
I. BACKGROUND
On November 18, 1998, a jury found defendant guilty of one count of knowingly possessing, with the intent to distribute, approximately 144 grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841 (a)(1). On March 12, 1999, defendant was sentenced to a 120 month term of imprisonment. Application of the United States Sentencing Guidelines ("USSG") produced a total offense level of thirty with a criminal history category of I. The USSG sentencing range was, therefore, 97 to 121 months, yet the court was bound to apply the statutory minimum sentence of not less than ten years. 21 U.S.C. § 841 (b)(1)(A).
In his present motion, defendant alleges his trial counsel failed to properly advise him of his possible qualification for a two point "safety valve" reduction in his base offense level pursuant to USSG §§ 2D1.1 (b)(6), 5C1.2. The government argues it offered defendant a plea agreement, which, if defendant had provided substantial assistance, could have resulted in a similar reduction in sentence pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553 (e). Defendant asserts not only did his counsel fail to explain the applicability of the "safety valve" reduction counsel also failed to inform defendant of any possible plea agreement. Defendant has submitted a declaration stating his counsel's failure and his assertion that if he had known of the "safety valve" provision he would have offered the government full assistance.
II. STANDARD OF REVIEW
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. See also United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995) To be entitled to a hearing, the defendant must allege facts, which, if proven, would entitle him to relief. Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id.
To obtain relief on an ineffective assistance of counsel claim, a defendant must satisfy the well established two-prong test of Strickland v. Washington, 466 U.S. 668 (1984) . First, he "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, he must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694.
III. DISCUSSION
After reviewing the records in this case, the court is unable to find that defendant's claim conclusively lacks merit. The court has not been supplied with any affidavits in opposition to defendant's declaration. Even if such documentation were provided, the court would be hesitant to rule on defendant's claim without the aid of a hearing considering the inherent issues of credibility involved in such assertions. See, e.g., United States v. Castillo-Arvizu, No. 98-35673, 2000 WL 1433629, at *4 (9th Cir. Sept. 27, 2000) (remanding for evidentiary hearing regarding the defendant's claim counsel failed to convey a plea bargain offer by the government); Donahue v. United States, No. 98-3839, 2000 WL 59846, at *1 (8th Cir. Jan. 4, 2000) (same). If defendant's allegations of error are proved correct, he may indeed present a case of ineffective assistance of counsel.
Therefore, the court grants defendant's request for an evidentiary hearing. The court, however, reminds all participants that the scope of the hearing is strictly limited to defendant's claim of ineffective assistance of counsel.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's request for an evidentiary hearing is granted in accordance with the terms of the above memorandum. Said hearing shall be held on Wednesday, February 27, 2002, at 10:30 a.m.