United States District Court, W.D. Arkansas, Harrison Division
MAGISTRATE JUDGE'S REPORT AND
MARK E. FORD, UNITED STATES MAGISTRATE JUDGE
the Court is Petitioner's pro se Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (ECF No. 64) filed on October
10, 2017. The United States filed a response on December 19,
2017. (ECF No. 69). Petitioner has not filed a reply. The
matter is ready for report and recommendation.
August 27, 2014, a Criminal Complaint was filed against
Defendant/Petitioner, Fernando Canales-Mendoza
(“Canales-Mendoza”), alleging that on or about
April 30, 2014 and May 7, 2014, Canales-Mendoza distributed
methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
(ECF No. 1). Canales-Mendoza was arrested on August 27, 2014
(ECF No. 2), and he made his initial appearance on August 29,
2014 (ECF No. 4). Jose Manuel Alfaro (“Alfaro”),
Assistant Federal Public Defender, was appointed to represent
Canales-Mendoza. (ECF No's. 4, 6).
September 23, 2014, Canales-Mendoza was named in a four-count
Indictment charging him with distribution of more than five
grams of methamphetamine (Counts One and Two), possession of
more than 50 grams of methamphetamine with the intent to
distribute (Count Three), and conspiracy to distribute
methamphetamine (Count Four). (ECF No. 8). Canales-Mendoza
appeared for arraignment with his appointed counsel on
October 8, 2014, and he entered a not guilty plea to each
count of the Indictment. (ECF No. 13).
trial was held on February 3-4, 2015, before the Hon. Robert
T. Dawson, U.S. District Judge. (ECF No's. 25, 26). On
February 4, 2015, the jury returned verdicts finding
Canales-Mendoza guilty of all four counts as charged in the
Indictment. (ECF No's. 27, 28).
initial PSR was prepared by the United States Probation
Office on March 19, 2015. (ECF No. 33). On April 2, 2015,
counsel for Canales-Mendoza advised that he had three
objections to the initial PSR: (1) he objected to the
inclusion of certain alias name, birthday and ID number
information; (2) he objected to Paragraphs 13 through 34 and
“denie[d] any wrong doing contained therein”;
and, (3) he objected to Paragraph 66 and stated, for
identification purposes, that he has black hair. (ECF No.
34). On April 3, 2015, the Government advised that it had no
objections to the initial PSR, but it requested that
additional information be added in the offense conduct
section. (ECF No. 35). The information noted in the
Government's request was included in Paragraph 32(a) of
the final PSR. (ECF No. 36-1, p. 1). The Probation Officer
noted that the alias name, date of birth, and ID number
“may have been typographical errors entered by someone
after one of the defendant's previous arrests; however,
they are associated with his criminal record in the Access to
Law Enforcement System (ATLAS) and are included in the
presentence report.” No amendment was made to the PSR
in response to Canales-Mendoza's first objection.
(Id.). Regarding Canales-Mendoza's second
objection to the PSR, the Probation Officer reported,
“[t]he defendant was found guilty of this conduct at
trial, ” and the PSR was not changed. (ECF No. 36-1, p.
2). In response to Canales-Mendoza's third objection to
the PSR, Paragraph 66 was amended to reflect that the
Defendant has black hair. (Id.).
PSR was submitted to the Court on April 7, 2015. (ECF No.
36). For purposes of guideline calculation, Canales-Mendoza
was determined to be accountable for 196.1 grams of actual
methamphetamine. (ECF No. 36, ¶ 34). Pursuant to
U.S.S.G. § 3D1.2(b), the four counts of conviction were
grouped into a single group. (ECF No. 36, ¶ 39). Based
on the drug quantity attributed to Canales-Mendoza, his Base
Offense Level was determined to be 32. (ECF No. 36, ¶
40). No specific offense characteristics, victim related,
role in the offense, or obstruction of justice adjustments
were made. (ECF No. 36, ¶¶ 41-44). No Chapter Four
enhancement applied. (ECF No. 36, ¶ 46). No reduction
for acceptance of responsibility was made. (ECF No. 36,
¶ 47). Canales-Mendoza's Total Offense Level was
determined to be 32. (ECF No. 36, ¶ 48). Canales-Mendoza
had a criminal history score of zero, placing him in Criminal
History Category I. (ECF No. 36, ¶ 54). The statutory
minimum term of imprisonment for counts one and two is five
years and the maximum term is 40 years; for count three, the
statutory minimum term of imprisonment is ten years and the
maximum term is life; and, for count four, there is no
statutory minimum and the maximum term is 20 years. (ECF No.
36, ¶ 79). Based upon a Total Offense Level of 32 and a
Criminal History Category of I, Canales-Mendoza's
advisory Guidelines range was determined to be 121 to 151
months imprisonment. (ECF No. 36, ¶ 80).
appeared with his counsel for sentencing on April 17, 2015.
(ECF No. 39). The Court made inquiry and determined that
Canales-Mendoza was able to comprehend the proceedings; that
he was satisfied with his counsel; that he had the
opportunity to read and discuss the pre-sentence
investigation report; counsel for both the United States and
Canales-Mendoza were afforded the opportunity to make a
statement to the Court; and, Canales-Mendoza was afforded the
opportunity to make a statement and present information in
mitigation of sentence. (Id.). The Court imposed a
sentence of 120 months imprisonment on each count, to run
concurrently; four years supervised release on Counts One and
Two, five years supervised release on Count Three, and three
years supervised release on Court Four, all to run
concurrently; no fine; and, a total of $400.00 in special
assessments. (ECF No. 39, p. 2). Canales-Mendoza was advised
of his appeal rights. (Id.). Judgment was entered by
the Court on April 17, 2015. (ECF No. 40).
filed a direct appeal to the Eighth Circuit Court of Appeals.
(ECF No. 42). In a brief filed under Anders v.
California, 386 U.S. 738 (1967), his counsel challenged
the sufficiency of the evidence to support the convictions
and the substantive reasonableness of the sentence. (ECF No.
53-1, p. 2). In a pro se supplemental brief,
Canales-Mendoza argued that he was eligible for safety-valve
relief. (Id.). In an Opinion filed on March 30,
2016, the Eighth Circuit found that the evidence establishing
three undercover buys of methamphetamine, with resale
quantities involved, supported the convictions; and, as to
the sentencing issues, that Canales-Mendoza failed to meet
his burden of proof that he qualified for safety-valve
relief, and his reasonableness challenge to his statutory
minimum sentence failed. (Id.). The Eighth
Circuit's Mandate was issued on April 21, 2016. (ECF No.
April 3, 2017, Canales-Mendoza filed a pro se
petition pursuant to 28 U.S.C. § 2255. (ECF No. 54). The
petition was docketed as one filed under 28 U.S.C. §
2255, but it was not a standard form § 2255 petition,
and it was entirely in the Spanish language. By Order entered
on April 5, 2017 (ECF No. 56), the Clerk was directed to
forward to Canales-Mendoza a blank § 2255 form (AO 243).
The Clerk did so on April 5, 2017. Canales-Mendoza was
ordered to complete the § 2255 form (AO 243), in the
English language, and file it with the Clerk within 30 days.
Canales-Mendoza was informed that his failure to do so may
result in the dismissal of this action. (ECF No. 56).
Canales-Mendoza failed to file a § 2255 form (AO 243) in
the English language as directed, nor did he respond in any
way to the Court's Order.
Canales-Mendoza's failure to file a standard form §
2255 petition in the English language as ordered, the
undersigned filed a Report and Recommendation on June 23,
2017 recommending dismissal of Canales-Mendoza's §
2255 Petition. (ECF No. 57). No timely objections were
received, and the Court entered an Order adopting the Report
and Recommendation on July 13, 2017. (ECF No. 58). A Judgment
of dismissal with prejudice was also entered on July 13,
2017. (ECF No. 59).
August 18, 2017, Canales-Mendoza filed a Petition to Recall
and for Extension of Time. (ECF No. 61). In it,
Canales-Mendoza alleged that he was unable to obtain a
translator to help him re-file an English version of his
§ 2255 petition, but that he had now found someone to
help him. He asked for an extension of 45 days to do so.
(Id.). By Text Only Order entered on August 25,
2017, the Court permitted Canales-Mendoza to file an
English-language § 2255 motion to vacate by October 10,
2017, advising that if such motion was filed the Court would
then address whether reconsideration of its prior Order (ECF
No. 58) was warranted.
October 10, 2017, Canales-Mendoza filed a Motion for Leave to
Supplement 28 U.S.C. § 2255 Motion Pursuant to 28 U.S.C.
§ 2242 (ECF No. 63) along with his Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (ECF No. 64) on the approved
standard form and in the English language. On October 31,
2017, the Court entered an Order (ECF No. 65) granting
Canales-Mondoza's Motion for Leave to Supplement 28
U.S.C. § 2255 Motion (ECF No. 63), and the Court vacated
its Order (ECF No. 58) and Judgment (ECF No. 59) dismissing
Canales-Mendoza's motion to vacate.
raises four grounds for relief in his amended § 2255
(1) Ineffective assistance of counsel for failure to
“present facts that would have reduced my mandatory
minimum sentence from 10 years to 5 years, specifically the
amount of drugs in the third count....” (ECF No. 64, p.
(2) Only a buyer and seller relationship existed not rising
to a conspiracy. Canales-Mendoza argues that counts one and
two deal with the sale of drugs, and “[s]imple sales of
drugs do not meet the essential elements of a conspiracy in
that there is no mutual agreement to further the
conspiracy.” Canales-Mendoza also argues that ...