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United States v. Elias

United States District Court, E.D. Kentucky, Southern Division, London

May 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HORACIO RAUL ESTRADA ELIAS, Defendant.

          MEMORANDUM ORDER

          DANNY C. REEVES, UNITED STATES DISTRICT JUDGE

         Defendant Horacio Elias has sent a letter to the Court requesting compassionate release and asserting an ineffective assistance of counsel claim against his attorney, Walter Nash. His request for compassionate release will be denied because there is no indication that he has exhausted his administrative remedies. Additionally, he cannot assert his ineffective assistance of counsel claim without authorization from the United States Court of Appeals for the Sixth Circuit. Therefore, the portion of his letter construed as a successive § 2255 motion, will be transferred to the Sixth Circuit in accordance with 28 U.S.C. § 2244.

         I.

         Elias pleaded guilty on April 10, 2007, to conspiring to distribute 1, 000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. [Record No. 108] He was sentenced to the mandatory minimum of life without release on April 24, 2008. [Record No. 151] Elias did not appeal his sentence.

         However, Elias filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on May 19, 2015. [Record No. 166] He contended that his attorney, Walter Nash, was perpetrating a fraud because Nash allegedly told Elias that he would be resentenced under Federal Rule of Criminal Procedure 35 and that Nash would file an appeal on his behalf. The Court later denied his § 2255 as untimely and concluded that he was not entitled to equitable tolling. [Record No. 177] Elias then filed a motion to reconsider the Court's decision, which was also denied. [Record Nos. 181, 182]

         On December 7, 2015, Elias filed a motion to reduce his sentence under Amendment 782. [Record No. 179] The Court denied that motion because the defendant was sentenced according to a statutory mandatory minimum and not according to the United States Sentencing Guidelines. [Record No. 180] Elias then appealed the denial of his motion for a sentence reduction to the United States Court of Appeals for the Sixth Circuit, The Sixth Circuit, however, affirmed this Court's decision. [Record No. 191]

         Elias has now requested compassionate release. He asserts that he is 88 years old, that he gets winded walking to the law library, and that he has been to cardiology on two occasions. Further, he alleges ineffective assistance of counsel by his attorney Walter Nash because his attorney charged him $225, 000.00 and allegedly knew that informants were lying.

         II.

         a. Compassionate Release

         To request compassionate release, a defendant must comply with the requirements set forth in 18 U.S.C. § 3582(c). This statutory section provides as follows:

         The court may not modify a term of imprisonment once it has been imposed except that-

(1) in any case-
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term ...

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