United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Marcelo Salinas pleaded guilty in March 2016 to seven counts
of distributing a mixture or substance containing cocaine and
one count of possession with intent to distribute cocaine.
[Record No. 20, 22] He was later sentenced to a term of
imprisonment of 63 months, followed by a six-year term of
supervised release. [Record No. 29] Salinas filed a direct
appeal which the United States Court of Appeals for the Sixth
Circuit dismissed based on the appellate waiver contained in
his plea agreement. [Record No. 52] The matter is now pending
for consideration of Salinas' pro se motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255');">55. [Record No. 55');">55]
§ 2255');">55 motion was referred to a United States Magistrate
Judge for review and issuance of a report pursuant to 28
U.S.C. § 636(b)(1)(B). After review, United States
Magistrate Judge Hanly A. Ingram recommended that
Salinas' § 2255');">55 motion be denied. [Record No. 57]
Although this Court must make a de novo
determination of those portions of the Magistrate Judge's
recommendations to which timely objections are made, 28
U.S.C. § 636(b)(1)(C), "[i]t does not appear that
Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects
to those findings." Thomas v. Arn, 474 U.S.
140, 150 (1985). Additionally, a party who fails to file
timely objections to a magistrate's recommendation
generally waives his right to appeal. Id. at 153-54.
Neither party has filed objections to the Magistrate
Judge's recommendation. Despite Salinas' failure to
file objections to the Magistrate Judge's recommendation,
the Court has reviewed de novo Salinas'
arguments and agrees with the Magistrate Judge's
claims that his trial attorney, Billy Slone, provided
constitutionally ineffective assistance. To establish
ineffective assistance of counsel, Salinas must show that his
counsel's performance falls below an objective standard
of reasonableness and that he is prejudiced by counsel's
performance. Henness v. Bagley, 55');">550');">766 F.3d 55');">550, 55');">554
(6th Cir. 2014) (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
first argues that Slone allowed the Court to use an
allegedly-biased interpreter who knew Salinas. He alleges
that the interpreter made the actual illegal drug
transactions while claiming to be Salinas. However,
Salinas's claims that the interpreter framed him are not
supported by the record. Pursuant to his plea agreement,
Salinas admitted that on seven different occasions he sold
varying amounts of cocaine to an undercover law enforcement
officer. [Record No. 22, ¶ 3(a)-(c), (e)-(h)] He also
admitted that, after giving consent to search a residence,
law enforcement located approximately 19 grams of suspected
cocaine and 12 pounds of marijuana. [Id. at ¶
3(d)]. Simply stated, Salinas has failed to allege that he
was prejudiced by counsel's alleged ineffective
assistance in allowing the use of a certain interpreter.
also contends that his attorney provided ineffective
assistance by allowing him to accept a guilty plea which
"clearly he didn't understand completely."
[Record No. 55');">55, p. 5] The defendant's claims that he did
not knowingly enter a guilty plea are without merit. The
Court thoroughly followed the requirements of Rule 11 during
the defendant's plea hearing, ensuring that his guilty
plea was knowingly and voluntary. [See Record No.
39] Salinas affirmed that he understood the terms and
conditions of his plea agreement and the rights he was giving
up by entering a plea of guilty. [Id. at pp. 11, 17,
29-30] Further, the Court of Appeals found that the
transcript of the rearrangement hearing demonstrates that
Salinas was aware of all consequences of his plea. [Record
No. 52, p. 4]
argues that "he repeatedly states he is innocent of
these charges" during the rearraigning hearing, but the
transcript tells a different story. During the rearrangement
hearing, in response to the Court asking the defendant to
state in his own words what it was that he did to be guilty
of the eight charges, Salinas responds "nothing"
and "nothing to do with cocaine, no." [Record No.
39, pp. 31-32] However, the Court then directed the defendant
to the factual summary contained in his plea agreement, and
Salinas agreed and admitted to those facts. [Id. at
p. 33] Additionally, he admitted that it was his belief that
if the case were to proceed to trial, the government could
prove the elements of the crimes charges beyond a reasonable
doubt. [Id. at p. 34] Salinas then acknowledged that
it was his intention to enter a plea of guilty because he
was, in fact, guilty of what was charged in each count.
[Id. at pp. 34-35] At the conclusion of the hearing,
the Court asked Salinas if he had any questions about any of
the matters covered. In response, Salinas stated, "No.
Everything is fine. I just don't want to be in jail for
too long. I have my family in Mexico." [Id. at
p. 36-37] Salinas responses to the Court questions contradict
any claim that his counsel was ineffective by allowing him to
accept a guilty plea that he did not understand. The record
is clear that Salinas understood the process and the
consequences of his plea.
Salinas argues that his attorney provided ineffective
assistance of counsel because two kilograms of cocaine was
attributed to him. [Record No. 55');">55, p. 6] He contends that he
was only responsible for 223 grams of cocaine. [Id.]
First, it should be noted that Salinas admitted to
distributing 587.112 grams of cocaine, and an additional
17.887 grams was located during a search of his residence.
[Record No. 22, ¶ 3] Additionally, as noted in his
Presentence Report, Salinas informed undercover officers at
the May 19, 2014, drug transaction that he had "two
blocks" (i.e., two kilograms), of cocaine remaining in
his supply. [Record No. 31, pp. 4-5] Based on this admission,
the probation office subtracted the amount of the two
subsequent drug transactions to arrive at a figure of 1,
776.656 grams of cocaine that was unaccounted for in the plea
agreement. [Id. at p. 6] Even though Salinas argues
his counsel provided ineffective assistance by allowing the
larger amount attributed to him, the record is clear that his
counsel objected to the inclusion of the 1, 776.656 grams of
cocaine not referenced in the plea agreement. [Id.
at p. 19] Counsel continued to object to this inclusion
during the sentencing hearing, and cross-examined the
government's witness TFO Adkins. [See Record No.
10-14.] Slone argued that Salinas was not reasonably capable
of having that amount of cocaine in his possession.
[Id. at p. 18] However, the Court overruled the
defendant's objection, finding the inclusion of the 1.7
kilograms of cocaine to be properly attributed to Salinas.
[Id. at pp. 21-22]
summary, the record is clear that counsel objected to and
argued against the inclusion of the 1.7 kilograms of cocaine
not referenced in the plea agreement. Counsel did not fail to
challenge the drug quantity as Salinas alleges in his §
2255');">55. Thus, Salinas' claim of ineffective assistance is
directly contradicted by the record and is without merit.
Certificate of Appealability may issue "only if the
applicant has made a substantial showing of the denial of a
constitutional right." Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). When
the denial of a motion filed under § 2255');">55 is based on
the merits, the defendant must demonstrate that
"reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473');">529 U.S. 473, 484
(2000). Salinas has not made a substantial showing that he
was denied his constitutional rights. Reasonable jurists
would not debate the denial of Salinas' § 2255');">55
motion or conclude that the issues presented are adequate to
deserve encouragement to proceed further. Id. A
Certificate of Appealability will not be issued.
it is hereby