The opinion of the court was delivered by: Murphy, District Judge
Lorenzo Davila-Rodriguez seeks to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The Government was ordered to respond to his motion, and a response was filed on April 22, 2009 (Doc. 3). Davila-Rodriguez filed a reply on May 11, 2009 (Doc. 4).
For the reasons that follow, the motion is denied.
As the Court outlined in its March 23, 2009, Memorandum and Order directing the Government to respond,
Davila-Rodriguez pleaded guilty on May 24, 2004, without the benefit of a formal plea agreement or formal stipulation of facts, to one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. On February 27, 2006, he was sentenced to a 262 month term of imprisonment, five years supervised release, a fine of $1,250, and a special assessment of $100. The Court of Appeals for the Seventh Circuit affirmed his sentence on direct appeal. United States v. Davila-Rodriguez, No. 06-1596 (7th Cir. Nov. 17, 2006). On March 6, 2008, the Court received the instant motion pursuant to § 2255.
In his motion, Davila-Rodriguez raises two grounds for relief:
(1) that his Sixth Amendment right to confrontation was violated when this Court allegedly used hearsay evidence to increase his sentence; and (2) that his Sixth Amendment right to 'proof beyond a reasonable doubt' was violated when this Court allegedly made findings of fact based on a preponderance of evidence. (Doc. 2). The Court notes that the February 27, 2006, sentence imposed in this case was at a second sentencing hearing. The Court's first sentence to Davila-Rodriquez, also a term of 262 months, was vacated because the Court failed, without objection from the parties, to make certain findings. See United States v. Davila-Rodriquez, 149 Fed.Appx. 506, No. 05-1498, 2005 WL 2293384 (7th Cir. Sept. 15, 2005). Davila-Rodriquez lost on his second appeal to the United States Court of Appeals for the Seventh Circuit (cited above), and the United States Supreme Court denied his petition for writ a certiorari. Davila-Rodriguez v. United States, 127 S.Ct. 1861 (2007).
Title 28, United States Code, Section 2255 provides that "[a] prisoner in custody under sentence of the court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." Thus, collateral relief is available to Davila-Rodriguez only if any legal error in his conviction is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992), quoting Haase v. United States, 800 F.2d 123, 126 (7th Cir. 1986). In other words, a Section 2255 motion does not serve as a substitute for a direct appeal.
Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts,
If [a 2255] motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.
The Seventh Circuit has noted that "[n]o hearing is required in a section 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court." Oliver, 961 F.2d at 1343 n.5, citing United States v. Frye, 738 F.2d 196 (7th Cir. 1984). In this case, the Court finds that the factual matters raised by the motion may be resolved on the record, and the motion raises no cognizable claim. Accordingly, the Court will resolve the motion without a hearing.
There are three types of issues that cannot be raised in a motion brought pursuant to Section 2255: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, absent a showing of either good cause for the procedural default and actual prejudice stemming from the alleged error, or that the district court's failure to consider the issue would result in a fundamental miscarriage of justice. See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996); Degaglia v. United States, 7 F.3d ...