IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA, )

) 8:00CR52

 Plaintiff, )

)

vs. ) MEMORANDUM AND ORDER

)

LORENZO AVENDANO-RAMIREZ, )

)

 Defendant. )

 Now before the court is Filing No. 74, the Motion under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 motion”), filed by

Lorenzo Avendano-Ramirez. Defendant asserts he received ineffective assistance of

counsel. Also before the court are Filing No. 77, the government’s answer to the

defendant’s § 2255 motion; Filing No. 81, the defendant’s reply to the government’s

answer; and Filing No. 83, the defendant’s supplemental filing in support of his § 2255

motion. For the following reasons I find that § 2255 motion to vacate is denied. 

I. Background

A jury found defendant Lorenzo Avendano-Ramirez guilty on four counts of

distribution of methamphetamine, in violation of 21 U.S.C. § 841 (a) (1), on May 10, 2000.

Filing No. 17. That same day the jury returned a special verdict as to a forfeiture in

violation of 21 U.S.C. § 853. Filing No. 18. The court sentenced defendant to concurrent

prison terms of 121 months on each of the four counts. Filing No. 49. Defendant filed a

timely notice of appeal. Filing No. 50. On direct appeal defendant made the following four

claims: (1) the district court erred by not granting his request for substitute counsel; (2) the

district court erred by requiring him to represent himself; (3) the district court erred by not

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granting his motion for recusal; and (4) an Apprendi argument. See United States v.

Avendano-Ramirez, 242 F.3d 377 (8th Cir. 2000) (per curiam) (unpublished). 

The United States Court of Appeals for the Eighth Circuit rejected all of the

defendant’s claims on appeal. Specifically, the court stated the following: 

The district court did not abuse its discretion in denying the [substitute

counsel] motion, however, because Avendano-Ramirez failed to show any

justifiable dissatisfaction with his retained attorney, such as a conflict of

interest, an irreconcilable conflict, or a complete breakdown in

communications. . . . Contrary to Avendano-Ramirez's complaint that his

attorney "had not done anything for him," the attorney informed the district

court he had met with Avendano-Ramirez several times, he was prepared to

go to trial, and Avendano-Ramirez was merely dissatisfied with the attorney's

assessment of the strength of the prosecution's case. After the district court

refused to appoint substitute counsel, Avendano-Ramirez requested to

proceed alone, and after a lengthy discussion, the district court allowed

Avendano-Ramirez to represent himself with the retained attorney acting as

standby counsel. Avendano-Ramirez now contends his waiver of his right to

counsel was not knowing, voluntary, and intelligent. Having reviewed the

particular facts and circumstances surrounding the case, we conclude the

district court made Avendano-Ramirez aware of his right to counsel or to

represent himself, and of the possible consequences if he decided to

proceed without counsel's help. 

United States v. Avendano-Ramirez, No. 00-2932 (8th Cir. Dec. 19, 2000). 

II. Analysis

The primary issue before the court is whether defendant received ineffective

assistance of counsel at trial. Regarding allegations of ineffective assistance of counsel,

the Supreme Court of the United States has said that there is a strong presumption that

defense counsel’s conduct falls within the wide range of reasonable professional

assistance. See Strickland v. Washington, 466 U.S. 668, 689 (1984). The Supreme Court

stated:

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Judicial scrutiny of counsel’s performance must be highly deferential. It is all

too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a

particular actor or omission of counsel was unreasonable. . . . A fair

assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel’s conduct

falls within a wide range of reasonable professional assistance; that is the

defendant must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial strategy. 

Id.

A convicted defendant making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not to have been the result

of reasonable professional judgment. The court must then determine

whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. In

making that determination, the court should keep in mind that counsel’s

function, as elaborated in prevailing professional norms, is to make the

adversarial testing process work in the particular case. At the same time, the

court should recognize that counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. 

466 U.S. at 690. 

I now turn to the instant case. The defendant alleges that his counsel was

ineffective on three counts: (1) counsel provided contradictory information to defendant

regarding a possible plea agreement; (2) counsel could not effectively communicate with

defendant because counsel lacked fluency in Spanish; and (3) counsel’s general lack of

competence. I shall consider each issue in turn.

1. Contradictory Information Provided by Counsel

The defendant contends that his trial counsel, Mr. Joseph Lopez Wilson, rendered

ineffective assistance, because he provided wrong and contradictory information to

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defendant regarding a possible plea agreement. The defendant has the burden of proving

both the counsel’s deficient performance and that counsel’s deficiency prejudiced the

defendant. To establish prejudice, the defendant must demonstrate that absent counsel’s

errors, there is a reasonable probability that the proceeding would have had a different

result. Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000), citing Strickland v.

Washington, 466 U.S. 668, 687. Accord Fields v. United States, 201 F.3d 1025, 1027 (8th

Cir. 2000) “The Strickland test has two parts: whether counsel’s performance was in fact

deficient and, if so, whether the defendant was prejudiced by the inadequate

representation. If we can answer 'no’ to either question, then we need not address the

other part of the test.”

In the case at bar defendant states that his counsel, Mr. Joseph Lopez Wilson,

wrongly told him that his likely sentence would be three to five years if he were to agree to

plead guilty. Defendant also admits his counsel provided him with more accurate

information on possible sentencing a short time later. Instead of entering into a plea

agreement, defendant proceeded to trial pro se (with Mr. Lopez Wilson as “stand-by

counsel”) and a jury found defendant guilty on four counts. The ultimate outcome of the

case would not have been different had the defendant plead guilty. However, his sentence

presumably would have been lower. In his initial §2255 Petition (Filing 74) the defendants

states that his attorney initially advised him that a negotiated sentence of three to five years

could be obtained. Defendant then avers that his attorney advised that the more likely

sentence would be from five to ten years. The court takes judicial notice that had the

defendant pleaded guilty he likely would have received a three point reduction to his base

offense level for acceptance of responsibility. Furthermore, in the event he truthfully

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disclosed his criminal conduct he would have been eligible for the safety valve pursuant

to U.S.S.G. §5C1.2 which would have entitled him to a reduction of two additional points.

His base offense level was 32 (Filing 58) less five points would have placed the

defendant’s sentencing range between 70 and 87 months. The reduction merely for

acceptance of responsibility would have netted the defendant a sentencing range of 87 to

108 months. Defense counsel’s initial advice and subsequent more realistic advice would

have afforded the defendant a substantially lower sentence had he chose to plead guilty.

Unfortunately, defendant never relied on any of the sentencing advice given by his

attorney. Instead, defendant proceeded pro se to have his case tried to a jury. Therefore,

I find that defendant failed to meet his burden of showing that counsel’s initial sentencing

information prejudiced him and I conclude counsel’s representation not deficient. 

2. Defendant’s Access to an Effective Interpreter

Defendant argues that Mr. Joseph Lopez Wilson’s lack of fluency in Spanish

rendered Mr. Lopez Wilson ineffective as counsel. Again, defendant has the burden of

showing his counsel’s deficiency, and that the deficiency changed the result of the trial.

See Strickland, 466 U.S. at 688. Defendant’s counsel by affidavit stated that Spanish is

counsel’s primary language. Filing No. 77, Attach. 1. At trial, Judge Cambridge stated,

“Mr. Wilson has, with regard to his ability to speak Spanish and translate English, has been

determined by this court language skilled. He’s very proficient at speaking Spanish

notwithstanding what the defendant says.” TR; 449:23-24; 450:1-2. Further, defendant

offers no evidence of counsel’s lack of fluency. Therefore, I find that defendant has not

met his burden of showing counsel’s deficient performance or that he incurred any

prejudice by counsel’s representation. 

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Defendant briefly asserts that he did not receive adequate interpreters to aid in his

communication with the court. Specifically, defendant argues one interpreter provided by

the court had a “Miami dialect,” and was hard to understand. Filing No. 74. Generally,

“[t]he burden is on the petitioner to make out a case for section 2255 relief.” David v.

United States, 134 F.3d 470, 474 (1st Cir. 1998). In his § 2255 motion defendant offers

no evidence in support of his claim. In fact, at no time during the jury trial did defendant

indicate that he did not understand the court’s interpreters. In addition, Judge Cambridge

stated during the evidentiary hearing that for much of the time defendant “threw the

[translating] headphones down and refused to listen.” TR. 429: 12-15. Defendant

responded that he did not want to listen unless “[he] had a lawyer - [his] lawyer.” TR

429:16-19. Therefore, because defendant has not met his burden, I find that defendant’s

assertion that he did not receive an adequate interpreter is without merit 

3. Counsel’s General Lack of Competence

Finally, defendant argues in his supplemental brief that his counsel is generally

incompetent. “There is a presumption of competency of court-appointed counsel and a

showing must be made before that presumption can be overcome.” Kress v. United

States, 411 F.2d 16, 22 (8th Cir. 1969). Appellant's Sixth Amendment claim can prevail

"only if it can be said that what was or was not done by the defendant's attorney for his

client made the proceedings a farce and a mockery of justice, shocking to the conscience

of the Court." Kress, 411 F.2d at 22, quoting Cardarella v. United States, 375 F.2d 222,

230 (8th Cir. 1967). 

Defendant, in his supplemental brief, bases his argument on the affidavit that Mr.

Lopez Wilson provided to the United States Court of Appeals for the Eighth Circuit. See

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Filing No. 77, Attach. 1. Defendant argues that the content and the style of the affidavit

demonstrate Mr. Lopez Wilson’s general lack of competence. Filing No. 83. The court has

reviewed the affidavit and finds no evidence of general incompetence on the part of

defendant’s attorney. Furthermore, defendant offers no evidence of specific incompetent

acts or omissions by counsel at the time of the proceedings. Finally, the finding of the

Eighth Circuit Court of Appeals supports counsel’s competence in the proceeding.

“Avendano-Ramirez failed to show any justifiable dissatisfaction with his retained attorney,

such as conflict of interest, an irreconcilable conflict, or a complete breakdown in

communications.” See United States v. Avendano-Ramirez, 242 F.3d 377 (8th Cir. 2000)

(per curiam) (unpublished), cert. denied, 122 S. Ct. 613 (2001) Therefore, I find

defendant’s argument that his counsel is incompetent has no merit. 

THEREFORE, IT IS ORDERED: 

1. That Filing No. 77, the Motion under 28 U.S.C. § 2255 to Vacate filed by

defendant is denied.

2. A separate judgment of dismissal with prejudice will be filed in accordance with

this Memorandum and Order.

DATED this 5th day of May, 2005.

BY THE COURT:

s/ Joseph F. Bataillon 

Joseph F. Bataillon 

United States District Judge 

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