United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
Santos Adolfo Funez, has filed a pro se Motion to
Vacate Sentence Pursuant to 28 U.S.C. § 2255 [Docket No.
1021] and a Motion f or Permission to File Oversized Brief
(Supporting Memorandum) [Docket No. 1025]. The United States
filed a response, Docket No. 1029, to which Mr. Funez
replied. Docket No. 1030.
Court construes Mr. Funez’s filings liberally because
he is not represented by counsel. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court will not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the
reasons discussed below, the § 2255 motion will be
April 23, 2013, Mr. Funez was charged with one count of
conspiracy to distribute and possess 50 grams or more of
methamphetamine and 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine,
one count of possession with intent to distribute 50 grams or
more of methamphetamine and 500 grams or more of a substance
containing a detectable amount of methamphetamine, and one
count of using a telephone as a communication facility to
commit or facilitate the offense of conspiracy to distribute
and possess with the intent to distribute 50 grams or more of
methamphetamine and 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine.
Docket No. 1 at 2, 11-12. After a four-day bench trial,
see Docket Nos. 753, 754, 759, 761, the Court found
Mr. Funez guilty on all three counts. Docket No. 841 at 31.
to sentencing, Mr. Funez filed a Motion for Non Guideline
Offense, Docket No. 937, and an Objection to Guideline
Computation. Docket No. 945. He argued that the Court should
sentence him to a non-guideline sentence due to his
“role . . . in the offense and familial hardship
pursuant to 5H 1.6.” Docket No. 937 at 1. He also
stated that his actions were a deviation from his productive
and law-abiding history, id., and argued that he was
entitled to an adjustment under 2B.1.2(a) as a minimal
participant. Docket No. 945 at 1.
Funez was sentenced to 188 months’ imprisonment for
each of the conspiracy and possession convictions and to 48
months’ imprisonment for the use of a communication
facility conviction, all to be served concurrently. Docket
No. 965 at 3. Mr. Funez appealed his convictions and
sentences to the Tenth Circuit, arguing that the Court erred
in denying his request for a reduced total offense level.
United States v. Funez, 615 Fed.Appx. 492 (10th Cir.
2015) (unpublished). The Tenth Circuit affirmed the
Court’s denial of a downward adjustment. Id.
at 496. Specifically, the Tenth Circuit determined that Mr.
Funez was not a minimal or minor participant in the
underlying offense, and thus, any downward adjustment was not
warranted. Id. at 494-95.
Funez filed a Motion to Vacate Sentence Pursuant to 28 U.S.C.
§ 2255, Docket No. 1021, and a Motion for Permission to
File Oversized Brief (Supporting Memorandum). Docket No.
1025. The government responded, Docket No. 1029, and
plaintiff filed a “traverse.” Docket No. 1030.
The Court construes plaintiff’s filings as a pro se
litigant liberally. See Hall, 935 F.2d at 1110. The
Court will grant plaintiff’s motion to file an
Funez raises four arguments in his § 2255 motion. First,
he argues that he received ineffective assistance of counsel
because his attorney failed to object to the presentence
report and failed to “advise Mr. Funez and explain in
terms he could understand as to the specific requirements to
obtain” a reduced sentence for acceptance of
responsibility. Docket No. 1021 at 5; Docket No. 1022 at 37,
establish ineffective assistance of counsel, Mr. Funez must
demonstrate both that counsel’s performance fell below
an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice
to his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id.
at 689. There is “a strong presumption” that
counsel’s performance falls within the range of
“reasonable professional assistance.”
Id. Mr. Funez bears the burden of overcoming this
presumption by showing that the alleged errors were not sound
strategy under the circumstances. See Id. “For
counsel’s performance to be constitutionally
ineffective, it must have been completely unreasonable, not
merely wrong.” Boyd v. Ward, 179 F.3d 904, 914
(10th Cir. 1999).
the prejudice prong, Mr. Funez also must demonstrate that
there is “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. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id.; see also
Harrington v. Richter, 562 U.S. 86, 112 (2011) (stating
that “[t]he likelihood of a different result must be
substantial, not just conceivable.”). In order for a
defendant to make an ineffective assistance claim, he must
identify the specific “acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment.” Strickland, 466 U.S.
Funez argues that the probation officer conflated the
requirements for a reduction under U.S.S.G. § 3E1.1 with
those of U.S.S.G. § 5C1.2 and that his counsel was
constitutionally ineffective in failing to object to the
presentence report. Docket No. 1022 at 38. Section 3E1.1
provides that the defendant is entitled to a two-level
decrease in offense level if he “clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G.
§ 3E1.1. Further, § 5C1.2 states that a court shall
impose a sentence in accordance with the applicable
guidelines, without regard to any statutory minimum sentence,
if a number of criteria are met, one of which is that the
defendant “truthfully provided to the Government all
information and evidence the defendant has concerning the
offense.” U.S.S.G. § 5C1.2(a)(5). Mr. Funez argues
that the probation officer “conflated” these two
guidelines in the presentence report because the probation
officer, in his discussion for acceptance of responsibility,
mentioned that Mr. Funez failed to provide all information
regarding his participation in the underlying crime. Docket
No. 1022 at 38-39; Docket No. 956 at 7. According to Mr.
Funez, had counsel properly advised him of the requirements
for a reduction in sentence, or had counsel objected to the
presentence report, “there is a reasonable probability
that the District Court would have granted a reduction in Mr.
Funez’[s] sentence for acceptance of responsibility
under U.S.S.G. § 3E1.1.” Docket No. 1022 at 39.
as here, the basis for the ineffective assistance claim is
the failure to raise an issue, we must look to the merits of
the omitted issue.” United States v. Orange,
447 F.3d 792, 797 (10th Cir. 2006). “If the omitted
issue is without merit, then counsel’s failure to ...