United States District Court, D. Colorado
ORDER CONCERNING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside or Correct Sentence by a Person in Federal Custody [#96] filed March 23, 2012. The government filed a response [#102], and the movant filed a reply [#104]. I deny the motion as to claim two and order a hearing on claims one and three.
The defendant-movant, Gary Luckner, pled guilty to a one-count information in which he was charged with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349. The court sentenced Mr. Luckner to 90 months in prison. Mr. Luckner did not appeal.
According to Mr. Luckner, he contacted Glenn Jasperse, an attorney with the U.S. Department of Justice, within a day after Mr. Luckner received a target letter from Mr. Jasperse. Declaration of Gary Luckner [#97-1] ¶ 1. The target letter [#102-1] is dated October 8, 2009. Mr. Luckner says he left a voice mail message for Mr. Jasperse indicating that Mr. Lucker would cooperate fully in the investigation. A short time later, Mr. Luckner met with his attorney, William Taylor. During that meeting, Mr. Taylor advised Mr. Luckner that Mr. Jasperse had "offered a charge bargain' of five years if I agreed to plead guilty and cooperate." Luckner Declaration [#97-1], ¶ 2.
Mr. Luckner says he told Mr. Taylor that the five year deal sounded like a good offer. However, Mr Taylor said "we were not going to accept the deal...." Id., ¶ 3. According to Mr. Luckner, Mr. Taylor did not tell him that it was solely the decision of Mr. Luckner to accept or reject this offer. Id. In addition, Mr. Taylor did not advise him that "the first individuals who plead guilty and cooperate almost always receive the best deal" and that the five year offer would be lost if not accepted at that time. Id.
In January 2010, Mr. Luckner and Mr. Taylor met with Mr. Jasperse. Id., ¶ 4; Taylor declaration [#102-2], ¶ 10. Mr. Lucker cooperated fully, telling Mr. Jasperse everything about Mr. Lucker's involvement with the offense and all relevant conduct. Id., ¶ 4. After the proffer by Mr. Luckner, Mr. Jasperse offered Mr. Luckner a different plea agreement. Mr. Lucker accepted that offer, entered his plea of guilty, and was sentenced to 90 months in prison.
After his sentencing, Mr. Luckner instructed his attorney, Mr. Taylor, to file an appeal. After some discussion between Mr. Luckner and Mr. Taylor, Mr. Taylor convinced Mr. Luckner that an appeal would be pointless. Luckner declaration., ¶ 8. In addition, Mr. Taylor told Mr. Luckner that the government would not consider moving for an additional sentence reduction under FED. R. CRIM. P. 35(b) if Mr. Luckner filed an appeal. Id. No appeal was filed.
In his § 2255 motion, Mr. Luckner alleges that his defense counsel was constitutionally ineffective in three areas: (1) failing to advise Mr. Luckner to accept the five-year plea agreement allegedly offered by the government before Mr. Luckner was indicted; (2) failing to object at sentencing when the court purportedly failed to consider the 18 U.S.C. § 3353(a) factors separately from the factors regarding a downward departure under USSG § 5K1.1; and (3) failing to file an appeal.
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2255(a), a federal prisoner claiming the right to be released on the ground that his federal sentence "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, " may move to have his sentence vacated, set aside, or corrected.
A district court may dismiss a § 2255 motion without holding a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified." Rules Governing Section 2255 Proceedings, Rule 4(b). "[T]he district court is entitled to consider all the circumstances in the record in determining whether a hearing should be afforded." Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989) (internal quotation omitted). Summary disposition of habeas corpus petition is appropriate when the petition is "based on claims of unkept promises and misunderstanding when the court record refutes the claims." Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996). A district court does not err in refusing to hold an evidentiary hearing on the voluntariness of a plea when the allegations of the applicant are contradicted by the statements of the applicant made on the record during the plea colloquy. Id .; see also Gaskey v. Hartley, 280 F.Appx. 746, 748 (10th Cir. 2008).
To prevail on any discreet claim of ineffective assistance of counsel, Mr. Luckner must show as to that specific claim "that counsel's performance was deficient, " i.e., "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. He also must demonstrate that counsel's "deficient performance prejudiced the defense." Id. This second element requires a showing "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Although not insurmountable, the Strickland standard is "highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). I may address the two elements in any order, and I need not reach both if I find that Mr. Luckner has failed to meet the requirements of one. Strickland, 466 U.S. at 697.
Addressing the first element, my inquiry must be whether, considering all the circumstances as of the time of the conduct, "counsel's representation fell below an objective standard of reasonableness." Id. at 688. I review the performance of counsel with great deference, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. at 689 (quotation omitted). See id. at 690 ("the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment"); see also ...