United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are the Objections to the Report and
Recommendation (Doc. 75) filed by Defendant/Petitioner Jose
Luis Martinez in this case. On February 26, 2016, Mr.
Martinez filed a Motion to Vacate, Set Aside, or Correct a
Sentence pursuant to 28 U.S.C. § 2255. (Doc. 68). The
Government responded on April 1, 2016, (Doc. 71), and United
States Magistrate Judge Mark. E. Ford issued his Report and
Recommendation ("R&R") denying Mr.
Martinez's Motion in full on May 23, 2016 (Doc. 72). This
Court originally adopted the R&R in full because a timely
objection was not filed by Mr. Martinez. (Doc. 73). After
this, though, Mr. Martinez moved to have this Court's
Order adopting the R&R set aside because he never
received a copy of the Government's Response or the
R&R. (Doc. 74). By a text only order, this Court granted
Mr. Martinez's Motion to Set Aside, and allowed him to
file a reply to the Government and objections to the R&R.
Mr. Martinez has now filed his Reply and Objections (Doc.
75), and this matter is ripe for decision. For the reasons
stated herein, the R&R (Doc. 72) is ADOPTED IN FULL and
Mr. Martinez's Motion to Vacate (Doc. 68) is DENIED.
Martinez claims that he first became involved with the
illegal drug trade when he agreed to work as a confidential
informant for the Drug Enforcement Administration
("DEA") in order to help garner a sentence
reduction for his brother, Raul Martinez. According to Mr.
Martinez, he participated in three different controlled
purchases of methamphetamine for the DEA. However, the third
controlled purchase did not go as planned for Mr. Martinez.
This operation called for him to receive $70, 000 from
members of a drug cartel operating in Wichita, Kansas, and to
deliver the money to other members of the cartel operating in
Dallas, Texas. Mr. Martinez claims that the DEA agents were
to seize the $70, 000 dollars from him, by stopping and
arresting him en route from Kansas to Texas. The
purpose of conducting the seizure this way was to provide Mr.
Martinez sufficient documentation to convince the cartel that
the money had been seized by law enforcement and that he had
not stolen it. However, according to Mr. Martinez, the DEA
agents simply confiscated the money from him without giving
him any documentation, and then instructed him to still meet
with the cartel while wearing a wire. Mr. Martinez refused to
do this and his relationship with the DEA ended.
per Mr. Martinez, the drug cartel believed that he had stolen
the money and threatened to kill his family unless he worked
for the cartel to pay off the $70, 000. Mr. Martinez
acquiesced and was subsequently arrested for drug trafficking
in Fayetteville, Arkansas while working for the cartel. After
this arrest, Mr. Martinez entered into a plea agreement,
pleaded guilty, and was sentenced to 66 months imprisonment
by this Courton June 15, 2009. Upon Mr. Martinez's
release from prison, he started a tile and granite business
and was starting to rebuild his life. However, the cartel
subsequently learned about Mr. Martinez's release from
prison and again demanded that he work for them. The cartel
allegedly invaded the home of Mr. Martinez's brother and
inflicted several injuries upon him to intimidate Mr.
Martinez. Due to these threats, Mr. Martinez again acquiesced
to the cartel's demands and began selling
methamphetamine. Subsequently, Mr. Martinez was caught again
by law enforcement.
Criminal Complaint was filed against Mr. Martinez on May 19,
2014, alleging that he distributed methamphetamine and aided
and abetted in the distribution of methamphetamine. On June
25, 2014, Mr. Martinez was named in four counts of an
eight-count Indictment. (Doc. 12). Count One charged Mr.
Martinez with conspiracy to distribute methamphetamine from
November 20, 2013, to May 7, 2014; Count Six charged that Mr.
Martinez aided and abetted in the distribution of
methamphetamine on April 11, 2014; Count Seven charged that
Mr. Martinez distributed methamphetamine on April 28, 2014;
and Count Eight charged that Mr. Martinez distributed
methamphetamine on May 7, 2014. On July 1, 2014, Mr. Martinez
appeared for arraignment with his appointed counsel, Roxanne
Blake, and he entered a plea of not guilty to all charges
against him in the Indictment. On July 31, 2014, the Court
allowed Roxanne Blake to withdraw as Mr. Martinez's
attorney, and Kenneth L. Osborne was appointed to represent
Mr. Martinez the next day.
Martinez appeared with Mr. Osborne before this Court for a
change of plea hearing on October 16, 2014. A written plea
agreement was presented to the Court, and the Court allowed
Mr. Martinez to change his plea to guilty to Count Eight of
the Indictment. The Court ordered a Presentence Investigation
Report to be prepared.
United States Probation Office submitted its initial report
on December 22, 2014. Neither party objected to the report,
and after making a slight correction regarding Mr.
Martinez's age, a final report was submitted to the Court
on January 6, 2015. The final report determined that Mr.
Martinez was accountable for 115.6 grams of actual
methamphetamine, and his Base Offense Level was determined to
be 30. After a three-level reduction for acceptance of
responsibility, the report set Mr. Martinez's Total
Offense Level at 27. Mr. Martinez's criminal history
score of five placed him in Criminal History Category III.
The statutory maximum Mr. Martinez faced was 20 years
imprisonment, and the advisory guideline range was determined
to be 87 to 108 months imprisonment.
February 13, 2015, Mr. Martinez appeared before this Court
for sentencing. Mr. Martinez stated his satisfaction with Mr.
Osborne's representation. The Court awarded three levels
of downward adjustment for acceptance or responsibility, and
granted the Government's motion for a two-level downward
departure pursuant to §5K1.1 of the Guidelines. Mr.
Martinez and his counsel were given an opportunity to make
statements to the Court before sentencing. The Court then
imposed a within-guideline-range sentence of 70 months
imprisonment, three years supervised release, a $3, 000 fine,
and a $100 special assessment.
Martinez appealed his sentence to the Eighth Circuit Court of
Appeals, arguing that this Court abused its discretion in
sentencing him and erred in calculating his criminal history
points. The Eight Circuit affirmed this Court's sentence.
See Doc. 67.
February 26, 2016, Mr. Martinez timely filed his pro
se Motion to Vacate, Set Aside, or Correct a Sentence.
The Motion argues that Mr. Osborne provided ineffective
assistance during Mr. Martinez's sentencing.
Specifically, Mr. Martinez argues that he demanded that Mr.
Osborne tell the Court about his involvement with the DEA and
how this led to him having to work for a drug cartel to
protect his family; that by failing to heed his demand Mr.
Osborne rendered ineffective assistance; and that if Mr.
Osborne would have brought the information to the Court's
attention, there is a reasonable probability that the Court
would have imposed a lesser sentence. The R&R rejected
these arguments, and Mr. Martinez's objections to the
R&R are now ripe for decision.
U.S.C. § 2255(a) allows a prisoner sentenced to federal
custody to challenge his sentence if it was imposed in
violation of the Constitution or the laws of the United
States, without jurisdiction, or if the sentence is otherwise
subject to collateral attack. Criminal Defendants have a
constitutional right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
Thus, showing that a sentence was imposed when a defendant
did not have effective assistance of counsel is one way to
attack a sentence under 28 U.S.C. § 2255.
prevail on his ineffective assistance of counsel claim, Mr.
Martinez has the burden of proving two elements. First, he
must show that his attorney's performance was
"deficient." Strickland, 466 U.S. at 687.
Second, Mr. Martinez must prove that this "deficient
performance prejudiced [his] defense." Id. If
Mr. Martinez can demonstrate that he had ineffective
assistance of counsel during his ...