The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge
Presently pending and ready for resolution is a motion filed by Petitioner Eris Marchante-Rivas to vacate, set aside, or correct his sentence. (ECF No. 1464). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be denied.
Petitioner was charged by a multi-count indictment with
offenses arising from his participation in a street gang known as La Mara Salvatrucha, or MS-13, including conspiracy to conduct and participate in the activities of a racketeering enterprise, interference with commerce by robbery, and use and carrying a firearm during and in relation to a crime of violence. He entered into a plea agreement with the government pursuant to Fed.R.Crim.P. 11(c)(1)(C), which provided that he would plead guilty to the conspiracy count, admitting that he was a conspirator in the activities of the enterprise, including the predicate acts of the first-degree murders of two victims and the attempted murder of a third. The parties stipulated to the guideline factors and agreed that the appropriate sentence was 360 months.
Consistent with the terms of the plea agreement, on January 12, 2009, Petitioner was convicted, upon his guilty plea, of conspiracy to conduct and participate in the affairs of a racketeering enterprise, in violation of 18 U.S.C. § 1962(d), and sentenced to a term of imprisonment of 360 months to be followed by a five-year term of supervised release.
On January 11, 2010, the clerk received for filing the pending motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1464). The government was directed to respond and did so on July 27, 2010. (ECF No. 1636).
To be eligible for relief under 28 U.S.C. § 2255, a petitioner must show, by a preponderance of the evidence, that his "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." 28 U.S.C. § 2255(a). A pro se movant, such as Petitioner, is entitled to have his arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151--53 (4th Cir. 1978). But if the § 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255(b).
Petitioner advances seven claims in his § 2255 petition.
First, he contends that there was an inadequate factual basis for his plea and that he is actually innocent of the crime for which he stands convicted. Second, he argues that his plea was not knowing, voluntary, and intelligent. Third, he suggests that he received ineffective assistance of trial counsel. Fourth, he contends that he was deprived of his statutory right to appeal. Fifth, he claims that his sentence was procedurally and substantively improper. Sixth, he challenges the sufficiency of his plea colloquy. Finally, he argues that he was subjected to successive state and federal prosecutions in violation of the Double Jeopardy Clause.
The majority of Petitioner's allegations stem from the assertion that his plea was not knowing, voluntary, and intelligent. This is so, according to Petitioner, because his trial counsel failed adequately to consult with him prior to the plea and sentencing proceedings, made unspecified inaccurate representations, and failed to conduct proper investigation of certain issues. Moreover, he contends there was an inadequate factual basis for his plea and the ...