The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER RE MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Aldo Zatarain-Hernandez ("Defendant"), proceeding pro se, has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Defendant's motion is DENIED as to all claims except his claim that his attorney was ineffective in failing to follow his instructions to file an appeal.
On August 5, 2010, Defendant and his co-defendant, Lucio Vidal Gastelum-Ruiz, were charged in a two-count indictment with (1) importation of marijuana in violation of 21 U.S.C. §§ 952, 960 and (2) possession of marijuana with intent to distribute in violation of 18 U.S.C. § 841(a)(1).
On November 4, 2010, Defendant pled guilty to the importation charge in Count One without a plea agreement. Defendant acknowledged that his actual sentence would be determined by the sentencing judge and that the judge had the authority to give him up to the statutory maximum. (Change of Plea Hr'g Tr. 12-13, ECF No. 48.) Defendant also acknowledged that if the judge gave him a higher or more severe sentence than he was expecting, he was still bound by his guilty plea. (Id. at 13.) The parties agreed that the Government would recommend a third point for acceptance of responsibility, if applicable, and dismiss Count Two at the time of sentencing. (Id.)
On November 23, 2010, the court accepted Defendant's plea of guilty to Count One. (ECF No. 25.) At the sentencing hearing on March 22, 2011, the court sentenced Defendant to a term of imprisonment of 37 months and three years of supervised release. (Sentencing Hr'g Tr. 19.) The court granted sentencing adjustments for safety valve, minor role, and acceptance of responsibility. (Id. at 9.) The court also granted the Government's motion to dismiss Count Two, possession of marijuana with intent to distribute. (Id. at 23.)
Defendant argues that he was denied effective assistance of counsel because his attorney: (1) failed to advise Defendant that his co-defendant had already pled guilty;
(2) failed to argue for a minor role adjustment; (3) failed to argue for fast track plea benefits;
(4) failed to oppose or object to the government's case; and (5) failed to file an appeal. Defendant also requests an evidentiary hearing.
A. Ineffective Assistance of Counsel
An ineffective assistance of counsel claim requires a two-step showing: first,
Defendant must show that counsel's performance was deficient; and second, Defendant must show that the deficient performance caused him prejudice. Strickland v. Washington, 466 U.S. 668, 690-92 (1984). In considering such a claim, there is a "strong presumption that counsel's conduct falls within a wide range of acceptable professional assistance." Id. at 689. The Court addresses each of Defendant's five claims of ineffective assistance in turn.
1. Failure to advise Defendant that his co-defendant had already pled guilty First, Defendant claims that "Defense Counsel hide [sic] from me the fact that my co-defendant had already pleaded guilty," which prevented Defendant from obtaining a departure under the ...