Opinion
Nos. 02-3364-SAC, 01-40024-03-SAC
August 7, 2003
MEMORANDUM AND ORDER
The case comes before the court on the defendant's motion for reduction of sentence pursuant to 28 U.S.C. § 2255. (Dk. 127). The defendant specifically requests the court to recalculate this sentence under the guidelines after granting him a two-point downward departure based on the mitigating factor that he was a deportable alien which made him ineligible "for minimum security confinement, drug program, and pre-release custody." (Dk. 127). The defendant contends his counsel was ineffective in not arguing for a downward departure based on his alien status which was disclosed in the presentence report. In its response, the government refutes the allegation that defense counsel was ineffective in not arguing this ground for a downward departure.
PROCEDURAL HISTORY
On June 13, 2001, the defendant pleaded guilty to the one-count information that charged him with conspiracy to distribute 500 grams or more of a mixture containing methamphetamine. Prior to sentencing, the defendant requested new counsel by way of his counsel's motion to withdraw, and the court granted the defendant's request. (Dks. 91 and 92). On September 27, 2001, the court sentenced the defendant to 57 months of imprisonment and five years of supervised release. The judgment was entered on the docket on October 3, 2001, and the defendant did not appeal his sentence.
STANDARDS GOVERNING § 2255 PROCEEDINGS
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996); see also United States v. Frady, 456 U.S. 152, 167-68 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996) (citations omitted), cert. denied, 519 U.S. 1134 (1997).
To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). In applying this test, we give considerable deference to an attorney's strategic decisions and "recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. To show deficient performance, the defendant must prove that his counsel's performance was "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997). "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). To show prejudice, the defendant must establish that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Rogers v. United States, 91 F.3d 1388, 1392 (10th Cir. 1996). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A court can jump to the prejudice prong without first determining whether counsel's performance was deficient, for it may be "easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice."
Strickland, 466 U.S. at 697.
ANALYSIS
The defendant is unable to show he was prejudiced by his counsel's failure to argue for a downward departure based on his deportable status and the effect it would have during and after his confinement. The government argues there can be no prejudice because the Tenth Circuit in United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993), cert. denied, 511 U.S. 1036 (1994), held a downward departure on this basis is inappropriate. The court, however, questions whether Mendoza-Lopez remains the controlling precedent in this circuit.
The Second Circuit held that the collateral consequences a defendant faces because he is a deportable alien (including ineligibility for placement in community-confinement for the last six months of his sentence, post-imprisonment detention while awaiting deportation, and deportation itself) could not support a departure. United States v. Restrepo, 999 F.2d 640, 644-47 (2nd Cir.), cert. denied, 510 U.S. 954 (1993). The Tenth Circuit cited and followed Restrepo as a "well-reasoned decision." United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993). The Supreme Court subsequently held in United States v. Koon, 518 U.S. 81 (1996), that unless a factor is expressly barred by the guidelines the sentencing court may consider it as possible basis for departure. The Tenth Circuit considers Mendoza-Lopez to have been overruled or superseded by the Supreme Court's decision in Koon. United States v. Aguirre-Tello, 324 F.3d 1181, 1191 (10th Cir. 2003); United States v. Fagan, 162 F.3d 1280, 1282 (10th Cir. 1998). Referring in part to Restrepo and Mendoza-Lopez, the Eight Circuit has held that "[t]o the extent that these cases suggest that factors related to alien status may never be a basis for departure, they are inconsistent with Koon, which made it clear that courts may not declare what sentencing factors are inappropriate in every circumstance." United States v. Lopez-Salas, 266 F.3d 842. 846 (8th Cir. 2001). Thus, despite Mendoza-Lopez, the defense counsel here could have argued and the sentencing court could have considered the defendant's deportable status and the collateral consequences from it as grounds for downward departure.
Even if an authorized basis for a departure, the court should not depart unless the circumstances show the collateral consequences from the defendant's status are atypical and extraordinary. Lopez-Salas, 266 F.3d at 847. The Eighth Circuit rejected the argument that the defendant's exclusion from the drug treatment is a collateral consequence justifying a downward departure:
[T]he district court was incorrect when it based the departure on the fact that the status of being a deportable alien results in less benefits than an American citizen would have available in the penitentiaries. If departure is appropriate for deportable aliens who are categorically prohibited from early release, then a departure would also seem appropriate for the other groups categorically excluded from eligibility. Being categorically excluded from receiving early release is not by itself, an unusual or atypical factor."Id. at 848. Likewise, the Eighth Circuit held that a deportable alien being subjected to more severe conditions of confinement (ineligible for minimum security facilities and for halfway house placement during the last six months of incarceration) is not sufficient by itself to make a case atypical or unusual. Id. at 849. The Eighth Circuit emphasized that a downward departure based on collateral consequences would be "only appropriate in exceptional circumstances, such as where there is a substantial, undeserved increase in the severity of conditions of confinement, which would affect a substantial portion of a defendant's sentence." 266 F.3d at 850 (citations omitted).
The defendant has not shown a reasonable probability that his sentence would have been different if his counsel had argued for a downward departure on the basis of the collateral consequences flowing from his deportable alien status. The defendant has not articulated any circumstances that would make his case exceptional, atypical, or unusual. His categorical denial from the early release is not an unusual or atypical factor. Lopez-Salas, 266 F.3d at 848. There is nothing of record to indicate that the defendant would have qualified for a minimum security assignment. Considering the length of his sentence, there is nothing substantial or exceptional about the defendant's ineligibility for the six-month halfway house program. Moreover, courts in the Tenth Circuit have denied § 2255 relief to movants who argued their counsel were ineffective in not arguing for a downward departure on the basis of the deportable alien status and the consequences attendant to that status. See, e.g., United States v. Valdez-Gomez, 15 Fed. Appx. 763, 764, 2001 WL 896894, at *1 (10th Cir. Aug. 9, 2001); United States v. Acevedo, 7 Fed. Appx. 850, 851, 2001 WL 280485, at *1 (10th Cir. Mar. 22, 2001); United States v. Olivas, 2003 WL 21384321 (D. Kan. Jun. 12, 2003); Ruiz-Loera v. United States, 2000 WL 33710839 (D. Utah Jun. 23, 2000). As for the defendant's cursory equal protection claim based on the disparate treatment received under the Bureau of Prison's policies, this is not properly brought under § 2255 and should be brought under 28 U.S.C. § 2241 as it concerns the execution of the sentence, not its imposition. United States v. Acevedo, 7 Fed. Appx. at 851 n. 2. The defendant has not carried his burden of showing prejudice from any alleged deficient performance by his counsel.
IT IS FURTHER ORDERED that the defendant's § 2255 petition (Dk. 127) is denied.