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United States v. Monroe

United States District Court, D. Colorado

January 23, 2017

12. MICHAEL SAMUEL MONROE II, Defendant. Civil Action No. 16-cv-00302-WYD

          ORDER DENYING 28 U.S.C. § 2255 MOTION

          Wiley Y. Daniel Senior United States District Judge.


         This 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.)

         I must 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.


         Mr. 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.)

         This is 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).

         III. ANALYSIS

         Mr. 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).

         The 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).

         With 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).

         In 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.

         1. Counsel's Failure to Object to 280 Grams of Crack Cocaine and Failure to Argue for a Drug Quantity of 154 Grams

         Mr. 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.[1] 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. ยง 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 ...

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