United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION FOR POSTCONVICTION
KAYS, CHIEF JUDGE.
habeas case arises out of Movant Gilberto Lara-Ruiz’s
conviction for using a firearm during and in relation to a
drug trafficking crime. Now before the Court is
Movant’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence By a Person in Federal Custody
(Doc. 1). Because Movant’s claim is meritless, the
Court denies the motion and declines to issue a certificate
and Procedural History
April 9, 2009, a grand jury indicted Movant and eleven others
on various drug, money laundering, and gun crimes. After a
two-day trial, a jury found Movant guilty on Count 14,
possession of a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. 924(c)(1)(A)(i), and Count 15, using a
firearm during and in relation to a drug trafficking crime,
18 U.S.C. 924(c)(1)(A)(iii). The Eighth Circuit subsequently
reversed Movant’s conviction on Count 14. United
States v. Lara-Ruiz, 681 F.3d 914, 921, 923-24 (8th Cir.
November 5, 2013, the Court sentenced Movant to 300
months’ imprisonment to be served consecutively with
another sentence he was already serving.
April 15, 2015, the Eighth Circuit denied his direct appeal
of this sentence.
February 1, 2016, Movant acting pro se filed the
pending § 2255 motion. The Government responded to this
motion on April 4, 2016.
21, 2016, Movant filed another § 2255 motion.
24, 2016, the Court set an evidentiary hearing in this matter
and appointed counsel to represent Movant on this motion.
August 10, 2016, the Court held an evidentiary hearing.
Movant appeared and testified via video-conferencing.
proceeding brought under 28 U.S.C. § 2255, the district
court may “vacate, set aside or correct [a]
sentence” that “was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
raises one claim of ineffective assistance of counsel,
namely, that his attorney was ineffective for failing to
properly advise him of the potential risks of going to trial
versus accepting a plea offer. Movant contends his attorney did
not tell him that he faced a statutory minimum sentence of
ten years and a maximum sentence of twenty-five years if
convicted on Count 15. Movant alleges his attorney told him
that he faced at most a ten-year sentence if
convicted on this count. Movant contends he believed he had
little to lose ...