United States District Court, D. Colorado
August 26, 2014
UNITED STATES OF AMERICA,
MARIA GARCIA, Movant. Civil Action No. 14-cv-02353-REB.
ORDER TO FILE AMENDED § 2255 MOTION
ROBERT E. BLACKBURN, District Judge.
Maria Garcia was convicted, pursuant to her guilty plea, of Possession of a Machine Gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). [#158]. She was sentenced to an 84-month term of imprisonment. [ Id. ]. Judgment was entered on September 17, 2013. [ Id. ]. On August 25, 2014, Ms. Garcia filed, pro se, a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody. [#168].
In the Motion, Ms. Garcia asserts that her trial counsel was ineffective for the following reasons: (1) "Evidence exists that would have mitigated the Petitioner's culpability had it been presented at sentencing" [ id. at 4]; (2) "Counsel failed to investigate key elements of the case that would have aided Petitioner in receiving a lower sentence" [ id. at 5]; and, (3) "Counsel was ineffective when he failed to communicate with the Petitioner" [ id. at 7]. Ms. Garcia does not allege any specific facts to support her claims.
To show ineffective assistance, Movant must demonstrate that her attorney performed deficiently and that she was prejudiced as a result. See United States v. Hendrix, 2014 WL 305871, at *1 (July 8, 2014) (unpublished) (reviewing district court's dismissal of § 2255 motion under Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
Ms. Garcia's conclusory assertions about the failures of trial counsel are insufficient to show a Sixth Amendment violation under Strickland. See United States v. Moser, No. 13-3321, 2014 WL 2978498, at *3 (10th Cir. July 3, 2014) (unpublished); Snyder v. Addison, No. 03-6050, 89 F.App'x 675, 681 (10th Cir. 2004); see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir.1994) (conclusory allegations alone, without supporting factual averments, are insufficient to state a valid claim under § 2255); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (holding that even pro se plaintiffs must allege sufficient facts on which a recognized legal claim can be based, and that conclusory allegations will not suffice).
Because Ms. Garcia is not represented by counsel, I will grant her an opportunity to file an amended § 2255 Motion in which she must allege specific facts to support her claims of ineffective assistance of counsel.
THEREFORE, IT IS ORDERED as follows:
1. That the Movant, Maria Garcia, shall file by September 29, 2014, an Amended § 2255 Motion that complies with the directives of this Order;
2. That the Amended Motion shall be filed on the court-approved form for filing a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, which can be obtained from the Court's website at www.cod.uscourts.gov.; and
3. That if Ms. Garcia fails to file an Amended § 2255 Motion that complies with this order to the Court's satisfaction within the time allowed, the § 2255 Motion, filed on August 25, 2014 [#168], will be denied for the reasons discussed above.