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Tubens v. United States

United States District Court, D. Utah, Central Division

November 28, 2016



          TENA CAMPBELL U.S. District Court Judge

         Peter 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 (1984).[1]


         In June 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 sentence.

         The 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.

         Mr. Tubens submitted this information to the FBI agent without being granted any kind of immunity or proffer letter.

         A few 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.

         Though 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 No. 2:11-cr-00579.)

         Mr. 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.

         After 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 criteria.


         Mr. 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.)

         Generally, 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).

         When 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, “a ...

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