RICARDO M. BALLESTEROS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
INITIAL REVIEW ORDER REGARDING PETITIONER'S MOTION TO VACATE SENTENCE AND JUDGMENT PURSUANT TO 28 U.S.C. § 2255
MARK W. BENNETT, District Judge.
I. INTRODUCTION AND BACKGROUND
This case is before me on petitioner Ricardo M. Ballesteros's pro se Motion To Vacate Sentence and Judgment Pursuant to 28 U.S.C. § 2255 (docket no. 1) filed on October 28, 2013. I have conducted the required review under Rule 4(b) of the Rules Governing Section 2255 Proceedings and conclude that summary dismissal of petitioner's § 2255 motion is appropriate at this time. See Blackledge v. Allison, 431 U.S. 63, 75-76 (1977) (making clear that summary dismissal is appropriate where the allegations are vague or conclusory, palpably incredible, or patently frivolous or false).
On September 13, 2012, Ballesteros pleaded guilty to conspiring to distribute 500 grams or more of methamphetamine which contained at least 50 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. On June 13, 2013, he was sentenced to 120 months imprisonment and 5 years supervised release, the mandatory minimum sentence. Ballesteros did not appeal his sentence. On October 28, 2013, Ballesteros filed a Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody in which he raises a single claim for relief. Ballesteros alleges:
I started out with a lawyer by the name of Ian McConeghey that my mother got he told me to do a debriefing and I would only get 4 or 5 years. Every time I asked him some questions I fealt [sic]like he didn't know the answers to. Then i [sic] called him and he said he was no longer able to stay on my case that i [sic] would get a new lawyer. He told myself and my wife that I would only do 4 or 5 years.
Motion at 4 ¶ 12(a). I construe Ballesteros's claim as a claim of ineffective assistance of counsel.
II. LEGAL ANALYSIS
A. Ballesteros's Ineffective Assistance Of Counsel Claim
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. CONST. AMEND. VI. Thus, a criminal defendant is constitutionally entitled to the effective assistance of counsel both at trial and on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003); see also Steele v United States, 518 F.3d 986, 988 (8th Cir. 2008). The Eighth Circuit Court of Appeals has recognized that, if a defendant was denied the effective assistance of counsel guaranteed by the Sixth Amendment, "then his sentence was imposed in violation of the Constitution, '... and he is entitled to relief" pursuant to § 2255(a). King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). Both the Supreme Court and the Eighth Circuit Court of Appeals have expressly recognized that a claim of ineffective assistance of counsel should be raised in a § 2255 proceeding, rather than on direct appeal, because such a claim often involves facts outside of the original record. See Massaro, 538 U.S. at 504-05 (2003); United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) ("When claims of ineffective assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.").
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984), with emphasis added). To assess counsel's performance against this benchmark, the Supreme Court developed in Strickland a two-pronged test requiring the petitioner to show "both deficient performance by counsel and prejudice." Strickland, 466 U.S. at 687-88, 697; see Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419 (2009). "Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.'" Gianakos v. United States, 560 F.3d 817, 821 (8th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
As to the deficient performance prong, "The Court acknowledged [in Strickland ] that [t]here are countless ways to provide effective assistance in any given case, ' and that [e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 689). Moreover,
Recognizing the "tempt[ation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence, " [ Strickland, 466 U.S. at 689], the Court established that counsel should be "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, " id., at 690, 104 S.Ct. 2052. To overcome that presumption, a defendant must show that counsel failed to act "reasonabl[y] considering all the circumstances." Id., at 688, 104 S.Ct. 2052. The Court cautioned that "[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges." Id., at 690, 104 S.Ct. 2052.
Pinholster, 131 S.Ct. at 1403. To put it another way,
To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." [ Strickland, ] 466 U.S. at 688 , 104 S.Ct. 2052.... The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the ...