Case 4:14-cv-00134-ALM-CAN Document 11 Filed 02/03/16 Page 1 of 18 PageID #: 161
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CIVIL ACTION NO. 4:14cv134
`CRIMINAL ACTION NO. 4:09cr193(3)
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`§§
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`§
` §
`§
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`SHPETIM KONCI, #41710-424
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`VS.
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`UNITED STATES OF AMERICA
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`MEMORANDUM OPINION AND ORDER
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`Movant Shpetim Konci, a prisoner confined at Moshannon Valley Correctional Institution
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`in Philipsburg, Pennsylvania, proceeding with the assistance of counsel, filed the above-styled and
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`numbered motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
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`I. BACKGROUND
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`On June 28, 2005, the Chicago, Illinois, office of the Federal Bureau of Investigation (FBI)
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`initiated an investigation targeting an Albanian Organized Crime (AOC) group headed by Astrit
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`Bekteshi. The Bekteshi organization was identified as a highly organized drug distribution
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`organization dealing with hydroponic marijuana, ecstasy, and cocaine. The marijuana and ecstasy
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`were obtained, in part, from a Chinese Organized Crime group in Vancouver, Canada, then smuggled
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`into the United States. Early in the investigation of the Bekteshi Organization, agents learned that
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`the group was obtaining cocaine from suppliers in Texas, and possibly, California and Florida.
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`Shpetim Konci (Movant) was identified as Bekteshi’s “right-hand man,” and was found to be
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`directly involved in the illegal drug transactions. Movant was charged by Indictment on October 15,
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`2009.
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`On March 11, 2013, the district court sentenced Movant to 151 months’ imprisonment after
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`1
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`he pleaded guilty pursuant to a written plea agreement to conspiracy to possess with intent to
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`distribute cocaine, heroin, 3,4 methylenedioxymethamphetamine (ecstasy), or marijuana, in violation
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`of 18 U.S.C. § 846. On January 20, 2014, the United States Court of Appeals for the Fifth Circuit
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`dismissed the appeal as frivolous pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
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`L. Ed.2d 493 (1967). Konci v. United States, 552 F. App’x 364, 365 (5th Cir. 2014). Movant filed
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`the instant motion on March 7, 2014. On July 1, 2015, the district court reduced his sentence to 121
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`months’ imprisonment pursuant to 18 U.S.C. § 3582( c)(2).
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` In his § 2255 motion, Movant claims that he is entitled to relief because his counsel was
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`ineffective. Specifically, Movant asserts that his trial counsel induced him to enter his guilty plea
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`by (1) promising an 87-month sentence; (2) promising a safety valve reduction, and (3) promising
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`a reduction for substantial assistance (5K reduction). Movant also claims that his guilty plea was
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`involuntary because he suffered from cognitive and language deficiencies. Finally, he complains
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`that the Government breached the plea agreement by failing to file for a reduction in sentence.
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`Movant did not file a Reply.
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`II. § 2255 PROCEEDINGS
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`As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
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`from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
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`§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction.
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`The range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be
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`drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the
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`other.” United States v. Pierce, 959 F.2d 1297, 1300-01 (5th Cir. 1992). A collateral attack is
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`limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937
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`2
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`F.2d 228, 232 (5th Cir. 1991).
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`III. WAIVER IN MOVANT’S GUILTY PLEA
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`The Fifth Circuit has upheld the informed and voluntary waiver of post-conviction relief in
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`United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d
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`463, 465 (5th Cir. 1995), the Fifth Circuit held that a waiver may not be enforced against a § 2255
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`movant who claims that ineffective assistance of counsel rendered that waiver unknowing or
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`involuntary. In United States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an
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`ineffective assistance of counsel claim raised in a § 2255 proceeding survives a waiver only when
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`the claimed assistance directly affected the validity of that waiver or the plea itself. More recently,
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`the Fifth Circuit noted that it has upheld § 2255 waivers except for when there is an ineffective
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`assistance of counsel claim that affects the validity of that waiver or the plea itself or when the
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`sentence exceeds the statutory maximum. United States v. Hollins, 97 F. App’x 477, 479 (5th Cir.
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`2004).
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`Signed Plea Agreement
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`A review of the record shows that Movant signed a plea agreement containing the following
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`waiver provision:
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`Except as otherwise provided herein, the defendant expressly waives the right to
`appeal the conviction, sentence, fine and/or order of restitution or forfeiture in this
`case on all grounds. The defendant further agrees not to contest the conviction,
`sentence, fine and/or order of restitution in any post-conviction proceeding, included,
`but not limited to a proceeding under 28 U.S.C. § 2255. The defendant, however,
`reserves the right to appeal the following: (a) any punishment imposed in excess of
`the statutory maximum and (b) a claim of ineffective assistance of counsel that
`affects the validity of the waiver or the plea itself.
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`It also states:
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`I have read or had read to me this Plea Agreement. I have carefully reviewed every
`part of it with my attorney. I fully understand it and voluntarily agree to it.
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`Additionally, the plea agreement states:
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`The defendant has thoroughly reviewed all legal and factual aspects of this case with
`defense counsel and is fully satisfied with defense counsel’s legal representation.
`The defendant has received satisfactory explanations from defense counsel
`concerning each paragraph of this Agreement, each of the defendant’s rights affected
`thereby, and the alternatives to entering a guilty plea. After conferring with counsel,
`the defendant concedes guilt and has concluded that it is in the defendant’s best
`interest to enter this Agreement rather than proceeding to trial.
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`Finally, Movant stated in his plea agreement that the “plea of guilty is freely and voluntarily made
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`and is not the result of force, threats, or promises other than those set forth in this Agreement.”
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`Consequently, any allegation that the guilty plea was not knowingly or voluntarily made is
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`contradicted by Movant’s signed plea agreement.
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`Plea Hearing
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`A review of the record shows that, at Movant’s change of plea hearing, held on November
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`15, 2011, Movant said:
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`His plea was voluntary, and he was pleading guilty because he was, indeed, guilty;
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`He understood the charges against him and the elements of the charge;
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`He understood the sentencing range;
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`He understood that the sentence would be no less than ten years and no more than life
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`imprisonment;
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`He understood how the Sentencing Guidelines might apply to his case;
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`He understood the rights he was waiving by pleading guilty;
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`7.
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`8.
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`9.
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`He was not under the influence of drugs or alcohol that affected his mental
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`capabilities;
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`His guilty plea was voluntary, and not the produce of any force, threat, or promise;
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`He discussed the facts and the defenses of his case with counsel and is satisfied that
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`counsel fully considered his case;
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`10.
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`He affirmed that the written plea agreement contained the entire agreement
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`concerning his plea of guilty;
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`11.
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`He read the entire agreement, discussed it with counsel, and translated it into his
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`native language, if necessary;
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`12.
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`He agreed to the three stipulations listed in the plea agreement:
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`a.
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`b.
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`c.
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`The defendant admits he conspired to distribute or possess with the
`intent to distribute more than 15 kilograms but less than 50 kilograms
`of a mixture containing cocaine;
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`The defendant acknowledges he should not receive a minor or
`mitigating role adjustment pursuant to United States Sentencing
`Guidelines Section 3B1.2; and
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`A reduction of two levels for acceptance of responsibility under
`U.S.S.G. §3E1.1 applies; however, this stipulation is subject to
`recommendation of the United States Probation Office. If
`circumstances indicating that the defendant has not accepted
`responsibility become known after execution of this Agreement,
`this stipulation is void and the defendant may object to the failure
`of the Presentence Report to recommend the reduction. The
`government WILL NOT request to decrease the offense level by
`one additional level in accordance with U.S.S.G. § 3E1.1(b)
`because it was determined in the competency evaluation that the
`defendant was malingering;
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`13.
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`He read the factual statement, translated it into his native language, if necessary, and
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`discussed it fully with counsel, and agreed to everything contained in it;
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`5
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`14.
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`15.
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`He was fully competent to understand the charge against him and plead guilty; and
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`He was fully satisfied with the representation of his counsel.
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`See Transcript of Change of Plea Hearing, (dkt #342).
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`The court admonished Movant as to the charges against him. The court further explained the
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`rights Movant was giving up by pleading guilty to a felony. Movant stated that he understood the
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`rights that he was waiving. He also said that there had been no other promises made to him or
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`threats against him leading him to plead guilty. He said that he was pleading guilty voluntarily, of
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`his own free will, because he is guilty of the crime charged. Formal declarations in open court carry
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`with them a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621,
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`1629, 52 L. Ed.2d 136 (1977). Although a defendant’s attestation of voluntariness at the time of the
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`plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United
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`States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1984).
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`Movant fails to show that, but for trial counsel’s advice, he would have taken his chances at
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`trial. Conclusory allegations and bald assertions are insufficient to support the motion. Ross v.
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`Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (“absent evidence in the record, a court cannot consider
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`a habeas petitioner’s bald assertions on a critical issue in his pro se petition (in state and federal
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`court), unsupported and unsupportable by anything else contained in the record, to be of probative
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`evidentiary value”); United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard,
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`691 F.2d 796, 799 (5th Cir. 1982). The Fifth Circuit has held that a defendant’s testimony at the plea
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`colloquy that no one attempted in any way to force him to plead guilty carries a strong presumption
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`of verity. United States v. Abreo, 30 F.3d 29, 31 (5th Cir. 1994). In cases where the record
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`establishes that the defendant understood the nature of the charge against him and the direct
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`consequences of his act, the rudimentary demands of a fair proceeding and a knowing, voluntary plea
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`are satisfied. Wright v. United States, 624 F.2d 557, 561 (5th Cir. 1980).
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`Consent to Administration of Guilty Plea
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`Additionally, on November 15, 2011, Movant signed a Consent to Administration of Guilty
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`Plea. In the consent, Movant stated that he understood his trial rights, and that by pleading guilty,
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`he knew he was giving up those rights – except for the right to counsel. Movant understood that by
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`pleading guilty, his immigration status may be affected and may lead to deportation. He affirmed
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`that he understood that the court will consult the Sentencing Guidelines in assessing a sentence, but
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`understood that the court is not bound by the guidelines. He stated that he understood that, although
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`he may have been given an estimate of punishment, it is only an estimate, and that his punishment
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`could be increased based on various factors. Movant affirmed that he was aware that the court is not
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`bound by any agreements between himself and the Government. He also understood that only the
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`United States District Judge will determine his sentence.
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`Furthermore, Movant stated that he was making his plea of guilty freely, and was not forced
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`to plead guilty. He affirmed that no promises had been made to him other than what was contained
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`in the plea agreement. He stated that he was making the plea of guilty because he was guilty.
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`Movant said he fully understood the charges, including the statutory minimum and maximum
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`penalties, as well as terms related to supervised release, special assessments, forfeiture, and
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`restitution. He said that he fully understood the plea agreement and has no reservations or questions
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`concerning it.
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`Movant stated that he understood his appeal rights and that those rights could be limited by
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`the terms of his plea agreement. He said that he realized that he may not appeal his plea of guilty
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`or withdraw his plea of guilty if his sentence is greater than what he originally believed or what was
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`told to him by counsel. He represented that he was not under the influence of any substances or
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`medications and that he was fully competent to enter a plea before the court. He also said that if he
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`had any questions, he knew he could freely consult with his attorney. Movant represented that he
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`was fully satisfied with his attorney’s representation. He affirmed that the Factual Statement that
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`he signed was true and correct, and that he had reviewed it and found no material errors in what he
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`represented to the court. He understood that his statements made in the consent were made under
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`the penalty of perjury. Any allegation that the plea was not knowingly or voluntarily made is
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`contradicted by Movant’s signed consent.
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`Findings of Facts
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`Additionally, the magistrate court entered Findings of Facts on November 15, 2011. Based
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`on the hearing in which Movant pleaded guilty, the court found that Movant knowingly and
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`voluntarily consented to the administration of the Guilty Plea and Allocution. It further found that
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`Movant was fully competent and capable of entering an informed plea, that he was aware of the
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`nature of the charges and the consequences of the plea, and that the plea of guilty was knowingly and
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`voluntarily made, supported by an independent basis in fact containing each of the essential elements
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`of the offense. Any allegation that the guilty plea was not knowingly or voluntarily made is further
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`contradicted by the Findings of Facts.
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`Factual Statement
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`Finally, Movant signed a Factual Statement. In it, he admitted that he and one or more
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`persons made an agreement to distribute or possess controlled substances with the intent to distribute
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`them. He knew the unlawful purpose of the agreement, but joined in it with the intent to further it.
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`He specifically conceded to participating in the following acts, among others:
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`Beginning in or about 2005, and continuing until in or about 2009, Movant conspired
`with others to distribute or possess with intent to distribute at least 15 kilograms but
`less than 50 kilograms of a mixture or substance containing cocaine in the Eastern
`District of Texas and elsewhere.
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`In or about June of 2008, Movant and others conspired to purchase cocaine.
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`On June 5, 2008, $285,000 United States currency related to Movant and others was
`seized by law enforcement. This currency was intended for investment in cocaine.
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`On July 1, 2008, Movant and others met to discuss purchases of cocaine from a
`Dallas, Texas source.
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`In sum, Movant fails to show that he did not understand the nature of a constitutional
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`protection that he was waiving or that he had “such an incomplete understanding of the charges
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`against him that this plea cannot stand as an admission of guilt.” James v. Cain, 56 F.3d 662, 666
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`(5th Cir. 1995). In light of the waiver contained in Movant’s knowing and voluntary plea agreement,
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`for the court to consider his claims, Movant must allege that his sentence exceeds the statutory
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`maximum or that ineffective assistance of counsel affects the validity of his waiver or plea itself.
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`Movant does not allege that his sentencing exceeds the statutory maximum. However, because
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`Movant’s ineffective assistance of counsel claims could arguably affect the validity of the waiver
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`and plea itself, the court will examine them.
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`IV. INEFFECTIVE ASSISTANCE OF COUNSEL
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`Movant asserts that his guilty plea was involuntary based on trial counsel’s ineffectiveness.
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`Legal Standard
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`A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
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`counsel must prove his entitlement to relief by a preponderance of the evidence. James, 56 F.3d at
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`9
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`667. In order to succeed on a claim of ineffective assistance of counsel, a movant must show that
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`“counsel’s representation fell below an objective standard of reasonableness,” with reasonableness
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`judged under professional norms prevailing at the time counsel rendered assistance. Strickland v.
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`Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L. Ed.2d 864 (1984). The standard
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`requires the reviewing court to give great deference to counsel’s performance, strongly presuming
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`counsel exercised reasonable professional judgment. Id., 466 U.S. at 690, 104 S. Ct. at 2066. The
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`right to counsel does not require errorless counsel; instead, a criminal defendant is entitled to
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`reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981); Rubio v. Estelle,
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`689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d 279 (5th Cir. 1984).
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`Secondly, the movant “must show that there is a reasonable probability that, but for counsel’s
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`unprofessional errors, the result of the proceeding would have been different. A reasonable
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`probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
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`at 694, 104 S. Ct. at 2068. Movant must “affirmatively prove,” not just allege, prejudice. Id., 466
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`U.S. at 693, 104 S. Ct. at 2067. If he fails to prove the prejudice component, the court need not
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`address the question of counsel's performance. Id., 466 U.S. at 697, 104 S. Ct. at 2069.
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`The duty of defense counsel to a defendant who desires to enter a plea of guilty is to ascertain
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`that the plea is voluntarily and knowingly made. Diaz, 733 F.2d at 376. The two-prong test
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`Strickland test applies to cases involving guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
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`366, 370, 88 L. Ed.2d 203 (1985). A movant must show that he did not understand the nature of
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`a constitutional protection he was waiving or that he had “such an incomplete understanding of the
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`charges against him that this plea cannot stand as an admission of guilt.” James, 56 F.3d at 666.
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`Thus, if a defendant understands the nature of the charges against him and the consequences of his
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`plea, yet voluntarily chooses to plead guilty, the plea must be upheld on federal review. Diaz v.
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`Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983).
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`If a Movant challenges his guilty plea, there must be independent indicia of the likely merit
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`of his contentions, and mere contradictions of his statements at the guilty plea will not carry his
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`burden. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). The validity of a guilty plea is a
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`question of law and will be upheld on habeas review if entered into knowingly, voluntarily, and
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`intelligently. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
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`The Fifth Circuit has held that, when a defendant pleads guilty on the basis of a promise by
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`his trial counsel or the prosecutor, whether or not such promise is capable of being fulfilled, breach
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`of that promise taints the voluntariness of the plea. Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir.
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`1986). To establish this, Movant must show (1) the exact terms of the alleged promise, (2) exactly
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`when, where, and by whom the promise was made, and (3) the precise identity of any eyewitness to
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`the promise. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). If Movant produces
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`an independent indicia of the likely merits of his allegations, typically in the form of one or more
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`affidavits from reliable third parties, he is entitled to an evidentiary hearing on the issue. Id.
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`However, if his showing is inconsistent with the bulk of his conduct or otherwise fails to meet his
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`burden of proof in light of other evidence in the record, an evidentiary hearing is unnecessary. Id.
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`Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. Ross, 694 F.2d at
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`1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799.
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`Discussion
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`Here, Movant claims that his plea was involuntary because it was the product of his trial
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`counsel’s ineffectiveness. Specifically, Movant asserts that his attorney induced him to plead guilty
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`based on several unkept promises and because he suffered from cognitive and language deficiencies,
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`resulting in an involuntary plea of guilty.
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`Recommendation for 87-month Sentence
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`Movant contends that his trial counsel told him that the Government had promised to
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`recommend a sentence of 87 months in exchange for his guilty plea. However, he fails to present
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`any evidence, from the record or otherwise, to show exactly when and where this promise was made,
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`the exact terms of the promise, and any witnesses to the promise. Cervantes, 132 F.3d at 1110. To
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`the contrary, the record shows that Movant understood that he faced a statutory minimum sentence
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`range of ten years - 120 months. Furthermore, Movant stated that there were no agreements inducing
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`him to plead guilty other than those terms contained in the written plea agreement. He also said that
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`he understood that the sentence assessed could differ from any estimate given by his counsel or the
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`Government. The record shows that Movant understood the final sentence was solely within the
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`discretion of the court. Movant has provided nothing but his conclusory allegation that his plea was
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`involuntary or unknowing. Conclusory claims are insufficient to entitle a habeas corpus petitioner
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`to relief. Ross, 694 F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. Movant fails
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`to show deficient performance or that there is a reasonable probability that, but for counsel’s alleged
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`unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
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`at 694, 104 S. Ct. at 2068. This issue is without merit.
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`Safety-Valve Reduction
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`Movant next claims that counsel was ineffective for promising he would receive a safety-
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`valve reduction. However, he fails to present any evidence, from the record or otherwise, to show
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`exactly when and where this promise was made, the exact terms of the promise, and any witnesses
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`to the promise. Cervantes, 132 F.3d at 1110. Conclusory claims are insufficient to entitle a habeas
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`corpus petitioner to relief. Ross, 694 F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at
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`799. Movant fails to show deficient performance or that there is a reasonable probability that, but
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`for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.
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` Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. For the same reasons stated immediately above, this
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`issue is without merit.
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`5K Reduction - Substantial Assistance
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`Movant also claims that counsel was ineffective for promising that he would receive a “5K”
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`reduction. However, he fails to present any evidence, from the record or otherwise, to show exactly
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`when and where this promise was made, the exact terms of the promise, and any witnesses to the
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`promise. Cervantes, 132 F.3d at 1110. The plea agreement did not contain a substantial assistance
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`section, and the record shows that Movant understood that such a recommendation was entirely
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`within the Government’s discretion. Furthermore, Assistant United States Attorney Heather H.
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`Rattan confirmed that Movant had not provided any substantial cooperation warranting a reduction
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`in sentence. Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. Ross,
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`694 F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. Movant fails to show
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`deficient performance or that there is a reasonable probability that, but for counsel’s alleged
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`unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S.
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`at 694, 104 S. Ct. at 2068. This issue is without merit.
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`Cognitive and Language Deficiencies
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`Movant claims that his plea was involuntary because he suffered from cognitive and language
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`deficiencies. He asserts that “he was entirely dependent upon the representations and
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`recommendations of his counsel in deciding whether to plead or proceed towards trial.” Specifically,
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`Movant complains that when he entered his plea, “he did not understand that he was pleading to an
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`offense with a statutory ten year minimum mandatory sentence.”
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`A review of the record shows that an interpreter was present at the change of plea hearing
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`to provide translation, if necessary. It also reflects that Movant understood and spoke English. The
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`record shows that the plea agreement specifically outlined a ten-year minimum mandatory sentence.
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`Furthermore, the transcript from Movant’s plea hearing reflects that he said that he understood that
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`he was facing a ten-year minimum mandatory sentence. Additionally, counsel for Movant said that
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`he spent hours reviewing and explaining each paragraph of the plea agreement with Movant.
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`Furthermore, after three separate psychological examinations, each expert determined that
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`Movant was competent to stand trial. Movant was found to be malingering when he said he could
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`not remember his background and did not understand the proceedings because of a traumatic head
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`wound received years earlier while he was still in Albania.
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`Movant said he was pleading guilty knowingly and voluntarily, and that he was fully satisfied
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`with his counsel’s representation. Formal declarations in open court carry with them a strong
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`presumption of truth. Allison, 431 U.S. at 74, 97 S. Ct. at 1629. Although a defendant’s attestation
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`of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places
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`a heavy burden upon him. Diaz, 733 F.2d at 373-74.
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`Movant fails to prove that he was given deficient or misleading advice or that he was induced
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`into pleading guilty. Thus, he cannot show that, but for trial counsel’s advice, he would have taken
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`his chances at trial. Conclusory allegations and bald assertions are insufficient to support the motion.
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`See Ross, 694 F.2d at 1011; Joseph v. Butler, 838 F.2d 786, 788 (5th Cir. 1988). The Fifth Circuit
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`Case 4:14-cv-00134-ALM-CAN Document 11 Filed 02/03/16 Page 15 of 18 PageID #: 175
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`has held that a defendant’s testimony at the plea colloquy that no one attempted in any way to force
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`him to plead guilty carries a strong presumption of verity. Abreo, 30 F.3d at 31. In cases where the
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`record establishes that the defendant understood the nature of the charge against him and the direct
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`consequences of his act, the rudimentary demands of a fair proceeding and a knowing, voluntary plea
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`are satisfied. Wright, 624 F.2d at 561.
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`Movant fails to show that, but for counsel’s alleged errors, he would not have pleaded guilty
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`and would have insisted on going to trial. Hill, 474 U.S. at 58-59, 106 S. Ct. at 370-71. A guilty
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`plea must be upheld on habeas review if entered into knowingly, voluntarily, and intelligently.
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`Montoya, 226 F.3d at 404. The court found that Movant, after consultation with counsel, knowingly
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`and voluntarily pleaded guilty to the charges. It also found that Movant was fully competent and
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`capable of entering an informed plea, that he was aware of the nature of the charges and the
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`consequences of the plea, and that his guilty plea is a knowing and voluntary plea supported by an
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`independent basis in fact containing each of the essential elements of the offenses. Any allegations
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`that Movant’s plea was not knowingly or voluntarily made are contradicted by his signed plea
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`agreement, the plea hearing, the consent, the findings of fact, and the factual statement. Movant
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`fails to show deficient performance or prejudice under the Strickland standard. Strickland, 466
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`U.S. at 688, 104 S. Ct. at 2065. He has provided nothing but conclusory claims, and the record
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`refutes his claims. Davis, 825 F.2d at 894 (the petitioner must present an independent indicia of the
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`likely merit of his content – mere contradictions of his statements at the guilty plea do not meet his
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`burden). Without evidence in the record, his bald assertions present nothing for review. Ross, 694
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`F.2d at 1011; Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799.
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`Conclusion - Waiver in Movant’s Guilty Plea and Ineffective Assistance of Counsel
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`As discussed above, Movant knowingly and voluntarily pleaded guilty – he understood the
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`elements of the crime, the minimum and maximum sentencing range, and the rights he was waiving
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`by pleading guilty. He has not shown that he did not understand the nature of a constitutional
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`protection that he was waiving or that he had “such an incomplete understanding of the charges
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`against him that this plea cannot stand as an admission of guilt.” James, 56 F.3d at 666. If a
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`defendant understands the nature of the charges against him and the consequences of his plea, yet
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`voluntarily chooses to plead guilty, the plea must be upheld on federal review. Diaz, 718 F.2d at
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`1376-77. Movant fails to show that counsel induced him to plead guilty or that ineffective assistance
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`of counsel affected the validity of the waiver of the plea itself. He fails to show deficient
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`performance or that there is a reasonable probability that, but for counsel’s alleged unprofessional
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`errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
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`Ct. at 2068.
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`V. GOVERNMENT’S BREACH OF PLEA AGREEMENT
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`Finally, Movant claims that the Government breached the plea agreement by not
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`recommending a reduction in sentence. Specifically, he asserts that he “submitted himself” to
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`repeated debriefings and convinced a co-defendant to plead guilty. Movant contends that his
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`assistance should have resulted in a motion for reduction in sentence.
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`First, the court notes that this claim is waived by Movant’s knowing and voluntary plea.
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`However, even if it was not waived, Movant fails to show that the Government breached the plea
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`agreement. The record shows that the plea agreement does not contain a provision stating that the
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`Government would recommend a reduction of sentence based on substantial assistance.
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`Additionally, there was no mention of assistance or cooperation at the plea hearing. The defendant
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`bears the burden of demonstrating the underlying facts that establish the breach of a plea agreement
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`by a preponderance of the evidence. United States v. Cantu, 185 F.3d 298, 304-05 (5th Cir. 1999).
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`The court considers whether the Governm