United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. District Court Judge
Antonio Tubens was taken from a Greyhound bus and arrested
when police found several pounds of methamphetamine in his
carry-on luggage. Mr. Tubens was tried and found guilty of
possession with intent to distribute. Now, Mr. Tubens asks
the court to vacate his sentence under 28 U.S.C. § 2255,
alleging that his attorneys rendered constitutionally
ineffective counsel. Because the court concludes that Mr.
Tubens has not established that his counsels' performance
was constitutionally defective or resulted in prejudice, the
court denies his motion and dismisses his petition. See
Strickland v. Washington, 466 U.S. 668
2011, Utah Highway Patrol agents, with the help of their
drug-sniffing dogs, caught Mr. Tubens riding a Greyhound bus
with methamphetamine in his carry-on luggage. The Government
charged him with possession of methamphetamine with intent to
distribute. The charge carried a ten-year minimum mandatory
next month, Mr. Tubens, along with his then-attorney, met
with an FBI agent in Philadelphia. During the meeting, Mr.
Tubens told the agent that his father-in-law introduced him
to the drug-trafficking world. Mr. Tubens admitted that he
recently visited his father-in-law's supply source-a Las
Vegas resident named Victor-who sold him several pounds of
methamphetamine. He informed the agent that he stored the
methamphetamine in his carry-on luggage as he returned to
Philadelphia on a Greyhound bus. He explained that it was on
this trip home to Philadelphia that he was arrested.
Tubens submitted this information to the FBI agent without
being granted any kind of immunity or proffer letter.
weeks before Mr. Tubens's scheduled trial the Government
filed a notice under 21 U.S.C. § 851 informing him that
he may be subject to increased punishment as a result of his
two previous drug-trafficking offenses. According to the
Government, these prior drug-trafficking offenses potentially
subjected Mr. Tubens to a life sentence.
he conceivably faced a life sentence, and though his counsel
advised him of the benefits of entering a plea agreement, Mr.
Tubens insisted on going to trial. In fact, before his trial
began, Mr. Tubens appeared in court with his counsel. There
Mr. Tubens's counsel told the court that “there
were some discussions during the recess. The Government
extended an offer of 20 years. That offer has been rejected
by the defendant.” (Trial Tr. 19-20, ECF 110 in Case
Tubens proceeded to trial and lost. Though the Government
argued that his two earlier drug-trafficking convictions
subjected him to a life sentence, Mr. Tubens's counsel
responded that only one of his prior offenses should be
considered in his sentencing. Ultimately, the court agreed
with Mr. Tubens's counsel and sentenced him to twenty
years in federal prison.
Mr. Tubens's sentencing, then Attorney General Eric
Holder released a memorandum regarding charging decisions in
drug cases (“the Holder Memorandum”). That
memorandum states that prosecutors should decline to charge
the quantity of narcotics necessary to trigger certain
mandatory minimum sentences if the defendant meets specific
Tubens claims his counsel provided constitutionally
ineffective assistance by failing to (1) adequately advise
him about the possibility and benefits of entering a plea
agreement, (2) negotiate a sentence in light of the Holder
Memorandum, (3) interview potential witnesses, (4) challenge
the purity of the methamphetamine as well as cross-examine
the Government's chemist, (5) challenge a pre-arresting
officer's failure to read to Mr. Tubens his
Miranda rights, and (6) challenge the applicability
of one of his prior drug-trafficking offenses to his
sentencing based on the age of that offense. The Government
responds that Mr. Tubens fails to meet his burden on all of
these claims. It argues that the evidence “establishes
defense counsel's performance was not deficient, and that
in any case, petitioner was not prejudiced.” (Resp. Br.
5, ECF No. 9.)
defendants have a Sixth Amendment right to counsel, a right
that extends to the plea-bargaining process. Padilla v.
Kentucky, 559 U.S. 356, 373 (2010). The Sixth Amendment
entitles defendants “to the effective assistance of
competent counsel.” McMann v. Richardson, 397
U.S. 759, 771 (1970).
reviewing a defense counsel's performance, courts must
start with the “strong presumption” that counsel
provided effective assistance. Strickland v.
Washington, 466 U.S. 668, 689 (1984). A defendant has
the burden to overcome that presumption. Id. To do
so, a defendant must demonstrate two elements: that his
counsel's performance (1) was unconstitutionally
deficient, and (2) resulted in prejudice. Id. at
687. The performance prong of Strickland requires a defendant
to show “that counsel's representation fell below
an objective standard of reasonableness.” Hill v.
Lockhart, 474 U.S. 52, 57 (1985) (citation and internal
quotation marks omitted). And to demonstrate prejudice,