United States District Court, E.D. Kentucky, Southern Division, London
DANNY C. REEVES, UNITED STATES DISTRICT
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.
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.
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.
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]
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.
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:
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 ...