Submitted December 19, 2013.
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
Lino Terrazas Ramirez, Petitioner - Appellant, Pro se, Texarkana, TX.
For Lino Terrazas Ramirez, Petitioner - Appellant: Roger L. Sutton Sr., Sutton Law Office, Charles City, IA.
For United States of America, Respondent - Appellee: Craig Peyton Gaumer, Mary Clare Luxa, U.S. Attorney's Office, Des Moines, IA.
Before MURPHY, BYE, and SMITH, Circuit Judges. BYE, Circuit Judge, dissenting.
SMITH, Circuit Judge.
In May 2009, Lino Ramirez pleaded guilty to one count of conspiracy to distribute at least 500 grams of a mixture or substance containing methamphetamine and at least 50 grams of actual methamphetamine, in violation of 21 U.S.C. § § 841(b)(1)(A) and 846. Ramirez was sentenced to 240 months' imprisonment followed by ten years of supervised release.
Ramirez filed a 28 U.S.C. § 2255 petition to vacate, set aside, or correct his sentence in August 2012. The district court denied the petition. On appeal, Ramirez asserts that (1) his counsel was ineffective for failing to advise him that the government had inquired if Ramirez might cooperate against others, (2) his counsel was ineffective for failing to ask the district court to undertake the requisite 21 U.S.C. § 851(b) colloquy, (3) his counsel was ineffective for failing to withdraw Ramirez's guilty plea as Ramirez requested, and (4) an intervening change of law prevents enhancement of Ramirez's sentence for a prior felony. We affirm.
In November 2008, a federal grand jury indicted Ramirez on five counts of drug-related charges, including conspiracy to distribute drugs and drug distribution, in violation of 21 U.S.C. § § 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C), and 18 U.S.C. § 2. The government indicted other members of this conspiracy as well. In May 2009, Ramirez pleaded guilty to one count of conspiracy to distribute at least 500 grams of a mixture or substance containing methamphetamine and at least 50 grams of actual methamphetamine, in violation of 21 U.S.C. § § 841(b)(1)(A) and 846. The district court sentenced Ramirez to 240 months' imprisonment followed by ten years of supervised release. We affirmed this sentence on direct appeal. See United States v. Ramirez, 397 F.Appx. 283 (8th Cir. 2010) (unpublished).
In August 2012, Ramirez filed a 28 U.S.C. § 2255 petition to vacate, set aside, or correct his sentence. His petition asserted four claims: (1) ineffective assistance of counsel based on counsel's " fail[ure] to inform him of the government's interest in a cooperation agreement," (2) ineffective assistance of counsel based on counsel's failure " to request the court to read [the] necessary sentence colloquy as required by § 851(b) before imposing [an] enhanced sentence," (3) ineffective assistance of counsel based on counsel's " fail[ure] to file [Ramirez's] motion to withdraw his guilty plea" contrary to Ramirez's wishes, and (4) the occurrence of an intervening change of law that rendered an enhancement to Ramirez's sentence for a prior felony inapplicable.
The government moved to dismiss Ramirez's claims because Ramirez did not file the petition within the one-year limitations period of 28 U.S.C. § 2255(f). Ramirez argued that the claims were timely because of equitable tolling. The district court determined that claims two, three, and four were untimely and dismissed them, finding insufficient grounds for equitable tolling. The district court determined that Ramirez timely brought claim
one because the claim " was unknown to Ramirez until he received his file from his appellate attorney." Apparently, Ramirez's attorney withheld Ramirez's case file despite Ramirez's numerous requests to attain it. The district court found that Ramirez could not have learned about the government's interest in seeking a plea deal until after he received his case file several months after we affirmed his sentence.
Although Ramirez timely brought claim one, the district court rejected it because Ramirez failed to demonstrate that the lack of communication prejudiced him in a constitutionally recognizable fashion. The district court emphasized that " there was never a plea offer for counsel to convey to Ramirez." Because of the lack of a concrete plea offer, Ramirez failed " to show that the end result would have been different." Furthermore, Ramirez never " expressed a willingness to cooperate with the government or that he possessed information that would have been beneficial to the government." The court concluded that " [t]he mere possibility of obtaining more advantageous plea agreement terms is not sufficient to satisfy the prejudice required by Strickland ." 
The district court denied a certificate of appealability as to each claim because it found that Ramirez's claims were " untimely and/or without merit." On June 19, 2013, we granted a ...