United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is petitioner Adrian Fuentes-Garcia's ("Fuentes") motion to vacate under 28 U.S.C § 2255. (Doc. # 250). The United States responded, (doc. # 350), and Fuentes replied, (doc. # 354).
This case comes back to the court on remand from the Ninth Circuit. The court initially dismissed Fuentes's pro se 28 U.S.C. § 2255 motion to vacate his sentence as time-barred, because Fuentes filed his motion beyond the one-year limitations period. See 28 U.S.C. § 2255(f). Fuentes appealed and the Ninth Circuit vacated the court's order and remanded for further factual development.
The Ninth Circuit found that, though Fuentes admitted that he filed his motion outside of the one-year period, he "made colorable allegations sufficient to warrant an evidentiary hearing." (Doc. # 326 at 2). Therefore, the Ninth Circuit directed the court to hold an evidentiary hearing regarding the timeliness of defendant Fuentes's 28 U.S.C. § 2255 petition. (Doc. # 326 at 3).
The court scheduled the evidentiary hearing as instructed by the Ninth Circuit's mandate. Before the hearing, the government filed a motion requesting it be vacated. (Doc. # 340). The government disclaimed its argument that the petition was untimely and wished to respond to the petition on the merits. (Doc. # 340). Fuentes did not oppose the government's motion. ( See doc. # 340).
The court granted the motion. ( See doc. # 340). The court's order also vacated the hearing and ordered the government to respond to the § 2255 petition, file its motion seeking to waive the attorney-client privilege, and have Fuentes's counsel provide the appropriate affidavit. (Doc. # 340).
The government filed the appropriate motions for orders waiving attorney-client privilege, requiring the former counsel to respond to the allegations in Fuentes's § 2255 motions, which the court granted on September 30, 2014. (Doc. # 344). The government filed its response to Fuentes's motion to vacate under 28 U.S.C. § 2255 on December 18, 2014. (Doc. # 350). Fuentes replied through newly appointed counsel, Todd Leventhal, Esq.
Fuentes's instant motion to vacate, set aside, or correct a sentence for a person in federal custody under 28 U.S.C. § 2255 alleges ineffective assistance of counsel. ( Id. ). Fuentes requests an evidentiary hearing and any other relief appropriate. ( Id. ).
The pertinent factual background is as follows. On June 18, 2009, Fuentes and his codefendants met with an undercover DEA agent at the Primm Valley Resort and Casino to sell methamphetamine at $20, 000 per pound. (Doc. # 110 at 8). There, Fuentes and his codefendants reached an agreement with the DEA agent to sell 2, 514.2 grams of a mixture that contained 2, 227.67 grams of pure methamphetamine. ( Id. ). To complete the deal, Fuentes and his codefendants had to deliver the methamphetamine to Las Vegas. ( Id. ). Nevada Highway Patrol stopped their three vehicles and a subsequent search discovered the methamphetamine. ( Id. ).
Fuentes was charged with conspiracy to distribute methamphetamine under 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A)(viii), and 21 U.S.C. § 846. (Doc. # 87 at 1-2). Michael Pandullo ("Pandullo") was appointed Fuentes's counsel. (Doc. # 350 at 11). In August 2009, the government offered a plea bargain to Fuentes that recommended an offense level of 29. (Doc. # 350 at 15, 19). Fuentes rejected the offer because he did not consider the suggested length of sentence commensurate with his role. (Doc. # 250 at 14). In March 2010, the government made a second plea offer to Fuentes, which recommended an offense level of 32. (Doc. # 110 at 2, doc. # 350 at 11). Fuentes accepted this plea bargain offer on April 26, 2010. (Doc. # 110 at 10).
Fuentes pled guilty on May 24, 2010. (Doc. # 348 at 21). During the change of plea hearing, the court asked Fuentes if he was knowingly pleading guilty without being coerced, and was in fact guilty. ( Id. at 12-14, 21, 23). Fuentes responded in the affirmative.
The accepted plea bargain contained several important agreements and waivers. First, it suggested to the court a base offense level for Fuentes of 32. (Doc. # 110 at 2). This base offense level would place Fuentes in a recommended sentencing range of 135 to 168 months with a supervised release term of three to five years. (Doc. #349 at 4). Second, the United States agreed to recommend that Fuentes be given a sentence no higher than the middle of the guideline range. (Doc. # 110 at 4). Third, Fuentes explicitly waived his right to all appeals except for either a sentence above the guideline range or non-waivable appeals, such as a claim of ineffective assistance of counsel. ( Id. at 5).
This court sentenced Fuentes on August 23, 2010, to 135 months in prison with a supervised release term of 5 years. (Doc. # 349 at 7). This sentence was at the low end of the guidelines. ( Id. ). Fuentes then allegedly directed Pandullo to appeal based upon the length of his sentence imposed by the court, which Pandullo did not do. (Doc. # 250 at 15).
Fuentes's asserts four ineffective assistance of counsel claims: (1) failure by Pandullo to file a notice of appeal as requested by Fuentes; (2) failure by Pandullo to properly explain the original offer by the government of an eighty-seven month sentence in a plea offer; (3) failure by Pandullo to provide effective assistance of counsel at sentencing relative to Fuentes's minor role in the trafficking scheme; (4) failure by Pandullo to properly prepare for sentencing relative to the application of the safety valve proviso in the sentencing guidelines. (Doc. # 354).
II. Legal standard
A. Motion to vacate