United States District Court, W.D. North Carolina, Asheville Division
COGBURN, JR., UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on initial screening of
Petitioner's Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 [Doc. 2] and
Petitioner's Motion to Proceed in Forma Pauperis [Doc.
18, 2017, Pro Se Petitioner Jose Hector Alvarado
(“Petitioner”) was charged in a Bill of
Indictment with one count of traveling with minors in
interstate commerce for the purpose of engaging in illicit
sexual conduct, in violation of 18 U.S.C. § 2423(a)
(Count One); one count of traveling in interstate commerce
for the purpose of engaging in any illicit sexual conduct, as
defined in 18 U.S.C. § 2423(f), all in violation of 18
U.S.C. § 2423(b) (Count Two); and one count of being an
alien having entered the United States unlawfully after
having been deported from the United States, all in violation
of 8 U.S.C. § 1326(a) (Count Three). [Criminal No.
1:17-cr-00065-MOC-WCM (“CR”), Doc. 1:
Indictment]. Petitioner was charged in a Superseding
Indictment on August 16, 2017 with the same three counts. [CR
Doc. 17: Superseding Indictment].
October 25, 2017, Petitioner and the Government entered into
a Plea Agreement. [CR Doc. 35: Plea Agreement]. On October
26, 2017, an Amended Plea Agreement was filed. [CR Doc. 36:
Amended Plea Agreement]. An Amended Factual Basis was also
filed. [CR Doc. 37: Amended Factual Basis]. The Amended
Factual Basis sets forth, among other things, a verbatim
Facebook Messenger chat exchange between Petitioner and one
of his underage victims (whose mother Petitioner was dating)
in which he clearly propositions the victim for sex in
exchange for agreeing to transport the minor victims across
state lines to attend a party. [Id. at 3-4].
agreed to plead guilty to Count Two in the Superseding
Indictment and the Government agreed to dismiss the remaining
charges in the Superseding Indictment. [Id. at 1].
The same day, Petitioner pleaded guilty in accordance with
the Amended Plea Agreement. [CR Doc. 38: Acceptance and Entry
of Guilty Plea]. A United States Magistrate Judge accepted
Petitioner's guilty plea after conducting a thorough plea
colloquy, during which Petitioner was represented by counsel.
[See id.]. Under oath, Petitioner told the Court
that he received a copy of the indictment and discussed it
with his attorney. [Id. at ¶ 8]. The Court then
explained the charge and the maximum sentence for this
charge, which for this charge was not more than 30 year's
imprisonment, 18 U.S.C. § 2423(b). [Id.].
Petitioner then told the Court that he fully understood the
charge against him, including the maximum penalty he faced.
[Id. at ¶ 9]. The Petitioner further attested
that he had spoken with his attorney regarding how the U.S.
Sentencing Guidelines might apply to his case and that, in
some circumstances, Petitioner may receive a sentence higher
or lower than that called for in the Guidelines.
[Id. at ¶¶ 13, 15]. The Petitioner also
attested that he understood that the District Judge could not
determine the applicable Guidelines range until after
Petitioner's Presentence Report was prepared.
[Id. at ¶ 14]. The Petitioner also told the
Court that he understood that if his sentence is more severe
than Petitioner expected, the Petitioner will still be bound
by his plea and would have no right to withdraw it.
[Id. at ¶ 17]. The Petitioner stated, under
oath, that he is in fact guilty of the count in the Bill of
Indictment to which he was pleading guilty. [Id. at
Petitioner also told the Court that he was aware that a
Factual Basis had been filed in his case and that he had read
it, understood it, and agreed with it. [Id. at
¶¶ 30-1]. Petitioner stated that no one had
threatened, intimidated, or forced him to enter his plea of
guilty. [Id. at ¶ 32]. Petitioner also
statement that, other than the terms of his plea agreement,
no one made him promises of leniency or a lighter sentence to
induce him to plead guilty. [Id. at ¶ 32].
Finally, Petitioner told the Court that he was
“satisfied with the services of [his] lawyer in this
case.” [Id. at ¶ 35].
to Petitioner's sentencing hearing, a probation officer
prepared a Presentence Report. [CR Doc. 44]. Based on a Total
Offense Level of 28 and a Criminal History Category of II,
the probation officer found a guideline imprisonment range of
87 to 108 months. [Id. at ¶ 81]. At
Petitioner's sentencing hearing on August 2, 2018, the
Court affirmed the Magistrate Judge's findings and
acceptance of the Petitioner's guilty plea. [CR August 2,
2018 docket entry]. The Court entered a verdict and judgment
of guilty. [CR Doc. 47: Judgment]. The Court sentenced
Petitioner to a term of 78 months' imprisonment,
[Id. at 2], which resulted from the Court granting
Petitioner's motion for a downward variance of one
offense level from the guideline range because Petitioner
pleaded guilty and thereby avoided putting the victims
through a trial. [CR Doc. 48 at 3: Statement of Reasons].
September 16, 2019, Petitioner filed the pending Section 2255
motion to vacate. [Doc. 1]. On the same day, Petitioner also
filed a notice of appeal from his conviction to the Fourth
Circuit Court of Appeals. [CR Doc. 50]. In his Section 2255
motion, Petitioner claims his counsel was ineffective because
his counsel promised Petitioner that, if Petitioner pleaded
guilty, Petitioner would receive a sentence of only
51-months' imprisonment. Petitioner states that he
“took the plea agreement, based on the promise of his
counsel….” [Doc. 1 at 8-9, 11]. In his motion to
vacate, Petitioner also claims to be innocent of the charge
and that the case “was only a clear sham.” [Doc.
1 at 2].
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After conducting an initial screening and examining
the record in this matter, the Court finds that the
Petitioner has not asserted a colorable claim for relief
cognizable under § 2255(a) and the arguments presented
by Petitioner can be resolved without an evidentiary hearing
based on the record and governing case law. See Raines v.
United States, 423 F.2d 526, 529 (4th Cir. 1970).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
CONST. amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish a deficient performance by
counsel and, second, that the deficient performance
prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). In making this determination, there
is “a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689; see also United
States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).
in considering the prejudice prong of the analysis, the Court
“can only grant relief under . . . Strickland
if the ‘result of the proceeding was fundamentally
unfair or unreliable.'” Sexton v. French,
163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993)). Under these
circumstances, the petitioner “bears the burden of
affirmatively proving prejudice.” Bowie v.
Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the
petitioner fails to meet this burden, a “reviewing
court need not even consider ...