The opinion of the court was delivered by: Ronald Guzman, District Judge
MEMORANDUM OPINION AND ORDER
Defendant pleaded guilty to illegal reentry into the United States, 8 U.S.C. § 1326, and was sentenced to fifty-one months of imprisonment. He now moves to vacate his sentence under 28 U.S.C. § 2255 and argues that the deportation element of his crime was not fulfilled because the deportation hearing establishing that element deprived him of his constitutional right to due process. For the reasons provided below, the Court denies defendant's petition because he failed to raise this issue on direct appeal and is thereby procedurally barred from raising it collaterally here.
After pleading guilty to illegal reentry into the United States under 8 U.S.C. § 1326*fn1 pursuant to a plea agreement with the government, the Court sentenced defendant to fifty-one months imprisonment. (Sentencing Order of 7/9/01.) [ Page 2]
Defendant's original deportation fulfilling the deportation element of § 1326 occurred on September 12, 1996 after a deportation hearing. (Pet'r's Mot. Vacate Sentence, at 2.) He was deported based on his conviction for aggravated battery on August 23, 1994 in Cook County, Illinois. (Resp't's Resp. Pet'r's Mot. Vacate Sentence, at 1.) He reentered this country from Mexico again in 1996, shortly after his deportation. In 1999, he was arrested by the Chicago Police and charged with robbery. (Id.) He was then deported again under the 1996 deportation order. (Id.) Defendant reentered the United States in 2000. (Id.) On November 28, 2000 the Chicago Police Department arrested him, and he was charged with possession of a controlled substance. (Id. at 3.) The United States charged him by information under 8 U.S.C. § 1326(a) and (b)(2) with unauthorized reentry into the United States after having been deported due to a conviction for an aggravated felony. (Id.) Defendant pleaded guilty to this charge. (Id.) This Court sentenced him to fifty-one months of imprisonment.
Defendant subsequently appealed his sentence. His appellate counsel moved to withdraw, claiming that he could find no nonfrivolous ground for appeal. United States v. Rafaela-Morales, No. 01-2907, 2002 WL 378177, at *1 (7th Cir. Mar. 7, 2002). The court gave defendant leave to respond to his counsel's motion, but defendant declined. Id. The court agreed that any ground for appeal would be frivolous, granted counsel's motion to withdraw and dismissed the appeal. Id.
28 U.S.C. § 2255 allows a person convicted of a crime to ask for relief for "an error of law that is jurisdictional, constitutional, or constitutes a `fundamental defect which [ Page 3]
inherently results in a complete miscarriage of justice.'" Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). Denial of a section 2255 petition without an evidentiary hearing is proper where "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief. . . ." 28 U.S.C. § 2255.
In support of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255, defendant argues that his original 1996 deportation hearing violated the due process guarantees of the U.S. Constitution. Defendant argues that the immigration judge did not inform him of his right to seek a waiver of his deportation because the judge was operating under a false interpretation of the law. (Pet'r's Mot. Vacate Sentence, at 4.)
The government urges the Court to deny the petition. It argues that defendant is procedurally barred from raising this issue in a section 2255 petition because he did not raise the issue on direct appeal, or, alternatively that his argument fails on the merits because he did not have any right to waiver of his deportation order because he was never a legal resident of the United States. (Resp't's Resp. Pet'r's Mot. Vacate Sentence. at 4.) Because the Court finds that Rafaela-Morales is procedurally barred from raising the issues in his petition, the Court need not address the merits of his argument.
"[A] petition under section 2255 `will not be allowed to do service for an appeal,'" and "a district court cannot reach the merits of an appealable issue in a section 2255 proceeding unless that issue has been raised in a procedurally appropriate manner." Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989) (quoting Johnson v. United States, 838 F.2d 201, 202 (7th Cir. 1988)). A claim of error raised in a section 2255 petition usually must first be argued on direct appeal. Borre, 940 F.2d at 217. When the issues involve constitutional error, "the failure to raise issues on direct appeal bars a petitioner from [ Page 4]
raising them in a section 2255 proceeding unless he or she makes a showing of good cause for and prejudice from that failure." Id. (emphasis added). To demonstrate good cause, the petitioner must show "some objective factor external to the defense" that impeded his efforts to raise the issue. Coleman v. Thompson, 501 U.S. 722, 753 (1993).
Defendant appealed his sentence and did not raise the issue of the deportation judge's failure to advise him of his right to seek a waiver of deportation. Accordingly, he is procedurally barred from raising the issue in this petition ...