United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
Petitioner, Jose Felix Montano-Lopez, has filed with this Court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 38). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(b). Following consideration of all relevant pleadings in the case, it is recommended that Montano-Lopez's § 2255 motion be summarily DISMISSED.
FINDINGS OF FACT
On December 12, 2012, an individual subsequently indicted on federal charges of distributing methamphetamine ("Rivera") met with an undercover Mobile County Sheriff's Office ("MCSO") investigator to sell him an ounce of methamphetamine ICE. ( See Doc. 30, Presentence Investigation Report, at 3.) During that meeting, the undercover investigator told Rivera that he wanted three ounces of ICE on his next purchase, to which Rivera responded that he would have to call his supplier, "Hielera, " and have him bring the ICE down on his next trip to Mobile. ( Id. ) Before that purchase of ICE was consummated, however, Rivera was arrested on December 16, 2012. ( Id. )
On December 20, 2012, Rivera was interviewed by an MCSO investigator and advised the investigator that he was purchasing methamphetamine ICE from an individual from the Birmingham area named Hielera and apprised authorities of where in Mobile County he would meet his supplier and gave authorities a detailed description of Hielera's vehicle. ( Id. at 3-4.) Rivera then made contact with his supplier using his cell phone-which was in the custody of the Sheriff's Office following the cooperator's arrest ( compare id. with Doc. 40, at 10)-to see if he could meet up with him and purchase three ounces of ICE ( see id. ). Hielera-later identified as Montano-Lopez-informed Rivera that he had the ICE but that he and his co-workers were leaving Mobile to return to Birmingham; therefore, he suggested that they meet halfway to consummate the deal. ( See Doc. 30, at 4.) Investigators with the MCSO decided to set up surveillance on I-65 to see if they could spot Hielera's vehicle. ( Id. ) At about 4 p.m., Sheriff's deputies observed the described vehicle passing them; the officers stopped the vehicle for failing to signal a lane change. ( See id. ) There were five individuals in the vehicle at the time of the stop. ( Id. ) The officers allowed a drug dog to conduct a free air search of the exterior of the vehicle and the dog alerted "to the presence of narcotics on the passenger side door and bed area of the vehicle." ( Id. ) This active alert led to a search of the interior of the vehicle and the dog alerted on a green Navigator bag which Montano-Lopez identified as his bag. ( Id. ) A search of the green bag netted "three round golf ball sized objects in black tape which were concealed in a sock in the end compartment of the bag." ( Id. ) One of the officers cut open one of the round objects and found that it contained a white powdery substance which "field-tested positive for the presence of methamphetamine." ( Id. ) After arresting Montano-Lopez and advising him of his Miranda rights, the investigator who interviewed Rivera called the cell phone number Rivera called earlier in the day and the cell phone in Montano-Lopez's front pants pocket began ringing; the investigator retrieved the cell phone from petitioner's pocket and found his cell phone number displayed on the screen as an incoming call. ( Id. ) After Montano-Lopez was transported to the Office of Homeland Security for an interview, he admitted that he sold methamphetamine ICE to Rivera on several occasions and on the date of his arrest was found in possession of three and one-half (3 1/2;) ounces of methamphetamine ICE. ( Id. at 5.)
On March 28, 2013, Montano-Lopez was indicted in this Court on two charges: one count of conspiracy to possess with intent to distribute methamphetamine ICE, in violation of 21 U.S.C. § 846; and one count of possession with intent to distribute methamphetamine ICE, in violation of 21 U.S.C. § 841(a)(1). (Doc. 1, at 1-2.)
The defendant was arraigned on April 10, 2013; Clark Stankowski, Esquire, was appointed as counsel for Montano-Lopez and interpreter Bethany Corp-Edwards participated by telephone for translation purposes. (Docs. 10 & 11; see also Minute Entry for April 10, 2013.) During Montano-Lopez's April 16, 2013 detention hearing, interpreter Christopher Griffin participated by telephone to translate the proceedings for the defendant. (Doc. 16; see also Minute Entry for April 16, 2013.)
On May 29, 2013, at a change of plea hearing, Montano-Lopez entered a counseled guilty plea to both counts of the indictment. (Doc. 40, at 12.) It is at this hearing that the petitioner contends there was no interpreter present ( see Doc. 38, at 4); however, the record clearly indicates the contrary (Doc. 40, at 2 & 13). Examination of the official transcript from the guilty plea hearing shows that interpreter Michael Kagan participated by telephone from Las Cruces, New Mexico and translated the proceedings for the defendant. ( Id. ) When the defendant was asked if he was "fully satisfied with the representation you've received from your attorney in this case..., " the defendant replied "yes." ( Id. at 3 & 4.) And, after a detailed explanation of the charges against him, the plea he was entering into, and the statutory sentences he could serve as a result, the defendant pled guilty to both charges against him, all with the assistance of an interpreter. ( Id. at 12; see also id. at 4-9.)
On September 6, 2013, Montano-Lopez was sentenced to concurrent forty-eight-month terms of imprisonment. (Doc. 35, at 2.) As with all other key proceedings in the case, Montano-Lopez was assisted by an interpreter during sentencing, again Mr. Kagan. ( See Minute Entry dated September 6, 2013.) Thus, examination of the record in this case reflects that at all proceedings where the defendant was present, an interpreter was also present by telephone.
CONCLUSIONS OF LAW
Section 2255 reads, in relevant part, as follows: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).
Rule 4 of the Rules Governing Section 2255 cases states that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." 28 U.S.C. foll. § 2255, Rule 4(b). Because the record of prior proceedings in this case clearly establishes that Montano-Lopez is not entitled to relief on his ineffective assistance of counsel claim, it is proper for this Court to summarily dismiss the motion to vacate. See id.
Here, the sole argument made by petitioner is that constitutionally ineffective assistance of counsel at all hearings-with the exception of his sentencing-due to the lack of an interpreter being present entitles him to relief afforded by 28 U.S.C. § 2255. In order to establish a claim of ineffective assistance of counsel, a petitioner is required to show (1) that his attorney's representation fell below "an objective standard of reasonableness" and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Jones v. United States, 478 Fed.Appx. 536, 539-540 (11th Cir. Sept. 23, 2011) ("To make a successful claim of ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense."). "The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that he was prejudiced by that performance." Demar v. United States, 228 Fed.Appx. 940, 950 (11th Cir. Jun. 21, 2007) (quotation marks, brackets and citations omitted).
The Strickland v. Washington standard for analyzing claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The Eleventh Circuit has held that "counsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, as in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to ...