United States v. Tubens
691 F. App'x 507
| 10th Cir. | 2017Background
- In June 2011 Tubens was found with several pounds of methamphetamine in his carry-on after a Greyhound bus stop; he later admitted to buying the drugs and returning to Philadelphia.
- He was indicted under 21 U.S.C. § 841(a)(1) for possession with intent to distribute ≥50 g methamphetamine and, based on a prior felony drug conviction, received the 20‑year mandatory minimum.
- Tubens appealed his conviction; the Tenth Circuit affirmed on direct appeal. He then filed a pro se 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel (IAC) on multiple grounds.
- District court denied the § 2255 motion: (1) counsel advised him about a possible 20‑year plea and he rejected it; (2) counsel could not have relied on the Holder memorandum because it issued after sentencing; (3) Tubens could not show prejudice from failure to investigate other passengers or challenge purity, given his admission to the FBI.
- Tubens sought a certificate of appealability (COA) from the Tenth Circuit; he also raised a new Alleyne‑based IAC argument claiming counsel should have required the government to present prior‑conviction facts to a jury.
- The Tenth Circuit denied the COA and dismissed the matter, ruling the new Alleyne argument failed because Almendarez‑Torres still permits sentence enhancement based on a prior conviction. The court also denied Tubens’ renewed IFP request as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| IAC for poor plea advice / failure to accept plea | Tubens: counsel did not adequately advise him about pleading guilty and consequences of priors; had counsel advised, he would have pled. | Government/District: counsel and local counsel repeatedly advised Tubens about a 20‑year offer and risks of trial; Tubens rejected plea. | Denied — record shows advice was given and Tubens rejected offer; no prejudice shown (offer equaled sentence received). |
| IAC for failure to use Holder memo to seek lower charge | Tubens: counsel should have sought relief under AG Holder memo to avoid mandatory minimum. | Govt/District: Holder memo issued after sentencing; counsel could not reasonably rely on it at sentencing. | Denied — counsel’s performance not objectively unreasonable given timing. |
| IAC for failure to investigate/challenge evidence (other passengers, purity, chemist) | Tubens: counsel failed to interview passengers and challenge drug‑purity proof, denying effective cross‑examination. | Govt/District: Tubens presented no evidence showing different result; his FBI admission undercuts claim. | Denied — no reasonable probability of different outcome; no prejudice shown. |
| IAC for failing to require jury proof of prior conviction (Alleyne claim) | Tubens: counsel should have demanded jury proof of prior to increase mandatory minimum per Alleyne. | Govt/District: Almendarez‑Torres permits sentencing enhancement on the basis of a prior conviction; Alleyne did not overrule that. | Denied — Almendarez‑Torres remains controlling; Alleyne does not require jury finding for prior conviction. |
Key Cases Cited
- Lafler v. Cooper, 566 U.S. 156 (2012) (prejudice from rejecting a plea requires showing the offered sentence would have been less than the actual sentence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel: performance and prejudice)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimum must be submitted to a jury)
- Almendarez‑Torres v. United States, 523 U.S. 224 (1998) (prior conviction exception allows sentence enhancement based on judge‑found prior conviction)
- Miller‑El v. Cockrell, 537 U.S. 322 (2003) (standard for issuing a certificate of appealability)
- Slack v. McDaniel, 529 U.S. 473 (2000) (COA requires showing that reasonable jurists could debate the district court’s resolution)
- United States v. Tubens, 765 F.3d 1251 (10th Cir. 2014) (prior direct appeal decision describing search and facts)