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Ramos v. United States

United States District Court, E.D. Virginia, Alexandria Division

May 20, 2016

GILBERTO RAMOS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil No. 1:15-cv-l 556-GBL

          MEMORANDUM OPINION AND ORDER

          GERALD BRUCE LEE UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on pro se Petitioner Gilberto Ramos' ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence by A Person in Federal Custody ("§ 2255 Motion"). (Doc. 177). Petitioner is challenging the judgment from this Court based on his conviction by jury for conspiracy to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. §§841, 846. (Doc. 156). This case concerns Petitioner's claims that his sentence of 240 months should be either vacated or reduced to 120 months because (1) his trial counsel failed to properly investigate his past conviction and its use in a sentencing enhancement, and (2) counsel failed to appeal the issue that Petitioner believes was most likely to succeed. (Doc. 177).

         The issue is before the Court is whether to grant Petitioner's § 2255 Motion where Petitioner alleges that defense counsel rendered ineffective assistance by: (1) failing to fully investigate 21 U.S.C. § 851 and the definition of the term "felony drug offense, " and (2) failing to argue United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), at sentencing. (Doc. 177, at 4, 5). For the reasons that follow, the Court DENIES Petitioner's § 2255 Motion.

         I. BACKGROUND

         On August 30, 2012, Petitioner Ramos was charged in a one-count superseding indictment with conspiracy to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841, 846. (Doc. 61). On September 19, 2012, the government filed a Notice of Prior Conviction pursuant to 21 U.S.C. § 851. (Doc. 72). The Notice informed Ramos that he faced enhanced punishment under 21 U.S.C. §§ 841 and 846 because he was previously found guilty in the Superior Court of California of Possession of Marijuana for Sale, a "felony drug offense." (Id.) On September 22, 2012, Ramos was arraigned on the superseding indictment, pleaded not guilty, waived his right under the Speedy Trial Act and demanded a jury trial. (Doc. 69). Ramos' trial began on March 11, 2013, and the jury returned a guilty verdict on March 13, 2013. (Doc. 125). Ramos was sentenced on September 13, 2013 to 240 months imprisonment and ten years of supervised release. (Doc. 155). Judgment for Ramos was entered on September 16, 2013, and he filed a timely notice of appeal on September 27, 2013. (Doc. 159).

         On May 8, 2014, the Fourth Circuit affirmed Ramos' conviction and sentence in a per curiam decision, holding that the district court did not err by not submitting Ramos' prior felony drug offense to the jury or by applying a four-level enhancement for Ramos' leadership role in the drug conspiracy. United States v. Ramos, 571 F.App'x 177 (4th Cir. 2014). On December 15, 2014, the Supreme Court denied Ramos' petition for writ of certiorari. Ramos v. United States, 135 S.Ct. 882 (2014). On November 17, 2015, Ramos timely filed the instant pro se Motion to Vacate pursuant to § 2255. (Doc. 177). The government opposed the Motion on March 25, 2016, (Doc. 181), and Ramos filed his Reply on April 11, 2015 (Doc. 182).

         II. Standard of Review

         Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move the court which imposed the sentence, to vacate, set aside, or correct sentence upon grounds that (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence exceeds the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255 (2008). The Petitioner bears the burden of proof and must establish by a preponderance of the evidence that he is entitled to the collateral relief sought. Vanater v. Boles, 317 F.2d 898, 900 (4th Cir. 1967); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); United States v. Hawkins, 2012 WL 3578924, at *1 (E.D. Va. Aug. 17, 2012).

         Section 2255 provides a safeguard against complete miscarriages of justice by allowing for the correction of constitutional, jurisdictional, or other fundamental errors. See United States v. Addonizo, 442 U.S. 178, 185 (1979); Hill v. United States, 368 U.S. 424, 428 (1962); Hawkins, 2012 WL 3578924, at *1. Section 2255 is not intended to be a substitute for an appeal; thus, "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, " petitioner must make a showing of both "cause" and "actual prejudice resulting from the errors." United States v. Frady, 456 U.S. 152, 165-67 (1982). The Frady "cause and prejudice" standard also applies to "collateral challenges to unappealed guilty pleas." United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994).

         An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003); Dretke v. Haley, 541 U.S. 386, 394 (2004) (stating that ineffective assistance of counsel claims, may be raised "as a ground for cause or as a freestanding claim for relief-to safeguard against miscarriages of justice.'') see also United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).

         III. ANALYSIS

         The Court denies Petitioner's § 2255 motion on the grounds of ineffective assistance of counsel because Petitioner has not met his burden by a preponderance of the evidence under the two-prong test set forth in Strickland.

         I. Petitioner's Argument That Counsel Failed to Fully Investigate 21 U.S.C. § 851 and the Definition of the Term "Felony Drug Offense, " Does Not Satisfy the Strickland Test

          The Court holds that Petitioner fails to meet either Strickland prong for his argument that counsel failed to fully investigate whether the predicate offense listed in the Notice of Conviction met the definition of "felony drug ...


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