United States District Court, D. Colorado
ORDER DENYING 28 U.S.C. § 2255 MOTION
Y. Daniel Senior United States District Judge.
matter is before the Court on Movant Michael Samuel Monroe
II's Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 filed February 8, 2016. The
Government filed an Answer to the motion on March 15, 2016,
and a Reply was filed on March 28, 2016. On October 18, 2016,
Mr. Monroe filed a letter checking on the status of his
motion and requesting transcripts “so I can balance my
options further if necessary.” (ECF No. 1397 at 1.)
construe liberally Mr. Monroe's filings because he is not
represented by an attorney. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, I should not be an
advocate for a pro se litigant. See Hall,
935 F.2d at 1110. After reviewing the entire file, I find
that an evidentiary hearing is not necessary as Mr.
Monroe's claims are legal issues that are resolvable
solely on the basis of the existing record. Hooks v.
Workman, 606 F.3d 715, 731 (10th Cir. 2010); see
also United States v. Fields, 565 F.3d 290, 298 (5th
Cir. 2009) (if, based on the record, a court can conclude as
a matter of law that the movant cannot establish the elements
necessary to state a valid constitutional claim, an
evidentiary hearing is not necessary). Since I find that the
issues can be resolved on the existing record, I also deny
Mr. Monroe's request for transcripts. For the reasons
stated below, Mr. Monroe's 2255 motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Monroe was charged on January 26, 2012, in a multiple-count
indictment with a variety of cocaine-related offense. An
Information was filed on May 13, 2014, charging Mr. Monroe in
Count One with knowingly and intentionally distributing and
possessing with the intent to distribute 280 grams or more of
a mixture and substance containing a detectable amount of
cocaine base (crack cocaine). (ECF No. 1063.) Also on May 13,
2014, Mr. Monroe pleaded guilty to this offense. (ECF Nos.
1063, 1066 at 2, ¶ 1.) He was sentenced to 120 months of
imprisonment, the mandatory minimum sentence for the crime to
which he pled guilty. (ECF No. 1151). Judgment was entered on
January 28, 2015. (Id.)
Mr. Monroe's first § 2255 motion. He has met the
procedural requirements of § 2255 for this Court to rule
on the issues he raises in his motion. First, it appears that
Mr. Monroe has not pursued any other federal remedies,
including any prior post-conviction motions. See
Rule 5(b) of the Rules Governing Section 2255 Cases. Second,
his motion was submitted within the one-year statute of
limitations set forth under 28 U.S.C. § 2255(f)(1).
Monroe's § 2255 motion and brief in support of the
motion assert two claims of ineffective assistance of
counsel: (1) counsel did not argue at sentencing for a drug
quantity of 154 grams of crack cocaine, and should have
objected to 280 grams; and (2) counsel did not file a Notice
of Appeal. (See ECF No. 1275, at 4, 5; ECF No.
1275-1.) Mr. Monroe's ineffective assistance of counsel
arguments must be addressed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
Supreme Court has established a two-prong test to review
ineffective assistance of counsel claims. The movant must
demonstrate both that counsel's performance fell below an
objective standard of reasonableness and that counsel's
deficient performance was prejudicial. Strickland,
466 U.S. at 687. Courts are free to address these prongs in
any order. Byrd v. Workman, 645 F.3d 1159, 1168
(10th Cir. 2011).
respect to the first prong, requiring Mr. Monroe to
demonstrate that his counsel's representation was
constitutionally deficient by falling “below an
objective standard of reasonableness”, this standard is
“highly demanding” for the 2255 movant.
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). He
must show “that counsel's representation was
unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.” Id.
at 381 (citation omitted). The reasonableness is evaluated
from the perspective of the attorney at the time of the
claimed error. Id. “For counsel's actions
to rise to the level of constitutional ineffectiveness, his
strategic decisions must have been ‘completely
unreasonable, not merely wrong, so that [they] bear no
relationship to a possible defense strategy.'”
Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000)
(quotation and internal quotation marks omitted).
“Judicial scrutiny of counsel's performance must be
highly deferential.” Strickland, 466 U.S. at
689. There is a “strong presumption” that
counsel's performance falls within the range of
“reasonable professional assistance.”
Id.; see also Byrd, 645 F.3d at 1168
(“‘[c]ounsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment
. . . .'”) (quotation omitted).
order to demonstrate the second prong, Mr. Monroe must
establish “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. If the movant fails to
satisfy either prong of the two-part Strickland
test, the ineffective-assistance-of-counsel claims must be
dismissed. Id. at 697.
Counsel's Failure to Object to 280 Grams of Crack
Cocaine and Failure to Argue for a Drug Quantity of 154
Monroe first argues that his counsel was ineffective at
sentencing because he failed to determine that the drug
quantity of 280 grams or more of crack cocaine which
triggered the statutory ten year mandatory minimum sentence
was incorrect. Instead, Mr. Monroe argues that the actual and
correct drug amount was 154 grams as found by the Grand Jury.
It is contended that counsel should have recognized this and
objected to the 280 gram quantity, and that this would have
resulted in a lesser sentence. Mr. Monroe further asserts that
the facts and record do not demonstrate or establish that he
was directly involved with 280 grams of crack cocaine, only
that he was involved and accountable for 154 grams.
(See Exs. C and D to Mem. of Facts and Law in Supp.
of Movant's 28 U.S.C. § 2255 Mot.) Therefore, he
asserts that the 280 grams of crack cocaine stipulated in the
one-count information was clearly erroneous, that the court
failed to make particularized findings regarding the drug
amount, and that this affected the outcome of ...