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Kobasic v. United States

United States District Court, W.D. Michigan, Northern Division

July 17, 2017

PEDRO ANDRES KOBASIC, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          HON. ROBERT J. JONKER, Judge

         This matter comes before the Court on Movant's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) On June 30, 2017, the Government filed a response in opposition. (ECF No. 12.) The Court has reviewed the § 2255 motion and finds that oral argument is unnecessary. The motion fails substantively.

         I.

         In 2010, Kobasic was charged with conspiracy to distribute and possess with intent to distribute marijuana. (United States v. Kobasic, No. 2:10-cr-20 W.D. Mich., ECF No. 34.) He agreed to plead guilty, but absconded and fled to Mexico before his change-of-plea hearing on April 20, 2011. (Id. at ECF No. 131.) In 2014, Kobasic was arrested and brought back to the United States. He pleaded guilty pursuant to a plea agreement, and the Court sentenced him to 87 months in prison. (Id. at ECF No. 238.)

         Kobasic alleges several claims of ineffective assistance of counsel against his attorney, Sarah Henderson.[1] He argues the following: (1) counsel failed to conduct an adequate investigation; (2) counsel failed at each stage to challenge the Government's actions; (3) counsel failed to (a) form a working relationship with him, (b) interview him, (c) communicate with him regarding the evidence against him, (d) determine mitigating circumstances and potential witnesses, (e) file meaningful pre-trial motions, and (f) object; (4) counsel failed to file a motion to dismiss based on the statute of limitations; (5) counsel failed to investigate Kobasic's background in preparation for sentencing; (6) counsel failed to file a motion of appeal when instructed to do so; (7) the Court failed to require the government to state a factual basis of guilt, and counsel was ineffective for allowing this to happen; (8) counsel did not adequately prepare Kobasic for his presentence report interview; (9) counsel did not know how to calculate the Guidelines range; and (10) counsel should have entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) because that would have ensured credit for acceptance of responsibility. (ECF No. 1-1; PageID.19-28; ECF No. 12, PageID.128-29.)

         II.

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be raised in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Id.

         III.

         To succeed on an ineffective-assistance-of-counsel claim, Movant must establish the following: (1) trial counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). A reasonable probability is one that is “sufficient to undermine confidence in the outcome.” Id. Movant bears the burden of proof for each prong, and the Court may dismiss a claim of ineffective assistance of counsel if he fails to carry his burden of proof on either one. Id. at 687, 697. When evaluating the Strickland prongs, the Court must afford “tremendous deference to trial counsel's decisions.” Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, the purpose of which is “to protect lawyers from having strategic decisions judged with ‘the distorting effect of hindsight.'” Boria v. Keane, 99 F.3d 492, 498 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 689). The Strickland test applies to guilty plea challenges based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the context of guilty pleas, the first prong of Strickland remains the same, and the “second, or ‘prejudice, ' requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Id. at 58-59. “In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.

         A. Failure to conduct an adequate investigation

         Kobasic alleges that counsel failed to conduct an adequate investigation, which is “[a]t the heart of an effective defense[.]” (ECF No. 1-1, PageID.19.) He alleges that counsel was not prepared, did not conduct a basic investigation of the facts or interview a single witness, and was not prepared to properly advise him. (Id.) Kobasic cites United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973) (“DeCoster I”), but he does not include any specific allegations against counsel.

         In DeCoster I, the D.C. Circuit opined that defense counsel should be guided by the American Bar Association Standards for the Defense Function, which include consultation with the client, advising the client of his rights and taking all actions necessary to preserve them, and conducting appropriate investigations. Id. at 1203. In United States v. DeCoster, 624 F.2d 196 (D.C. Cir. 1976) (“Decoster II”), the court clarified that “a mere breach of duty to an accused is not a constitutional violation unless the defendant proves that he was prejudiced.” Id. at 238.

         Not only does Kobasic fail to include any specific allegations as to what counsel failed to investigate, he also fails to describe how he was prejudiced. He does not identify any witnesses that Henderson should have interviewed or any additional investigation that she should have conducted. Rather, he simply concludes that she “failed to perform at least as well as a ...


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