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Herrera v. United states

April 15, 2010

PEDRO HERRERA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: David H. Coar United States District Judge

JUDGE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Petitioner Pedro Herrera ("Petitioner" or "Herrera") moves this court to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, Herrera's motion is DENIED.

BACKGROUND

On July 30, 2003, a jury convicted Herrera of one count of conspiring to possess with intent to distribute heroin and cocaine and a second count of attempting to possess with intent to distribute cocaine. At Herrera's trial, the evidence revealed a conspiracy involving Herrera and his co-defendants, who imported drugs from Mexico and distributed them in the United States. The evidence presented at trial included transcripts of tape recordings in which Herrera planned to meet his co-defendants to exchange a down payment of $150,000 for 50 kilograms of cocaine. Drug Enforcement Administration agents testified that they apprehended Herrera while he was fleeing from the planned meeting and found approximately $150,000 in a trap compartment in his Chevy Blazer. The evidence introduced at trial also included a Notice of Claim form addressed to the Forfeiture Counsel of the Drug Enforcement Administration ("DEA"), in which Herrera claimed ownership of both the Blazer and the $150,000 found in its interior.

Following his jury trial and conviction, this Court sentenced Herrera to 360 months' imprisonment, ten years' supervised release, and a $3,000 fine.

Herrera appealed to the Seventh Circuit, which affirmed his conviction and remanded his sentence for a determination pursuant to United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). See United States v. Carrillo, 435 F.3d 767 (7th Cir. 2006). The Court held that it would have given Herrera the same sentence if the Sentencing Guidelines had been advisory rather than mandatory, United States v. Herrera, No. 02 CR 729-2, 2006 WL 3486804 (N.D. Ill. Nov. 30, 2006), and the Seventh Circuit affirmed this decision. United States v. Herrera, 209 Fed. Appx. 585 (7th Cir. 2006). Herrera did not file a petition for a writ of certiorari in the United States Supreme Court.

On December 17, 2007, Herrera filed this pro se motion pursuant to 28 U.S.C. § 2255. Although not entirely clear, Herrera's motion appears to raise four grounds of ineffective assistance of counsel:

(1) Counsel failed to advise Herrera that the Government would present evidence at trial that he admitted to owning the $150,000 and Blazer in the Notice of Claim form submitted to the DEA;

(2) Counsel failed to advise Herrera that if he pled guilty, he could receive a sentencing reduction for acceptance of responsibility;

(3) Counsel failed to advise Herrera of the effect of relevant conduct on his sentence; and

(4) The cumulative effects of counsel's errors justify relief.

(Hab. Pet., Dkt. 1.) Herrera concludes that he was prejudiced by his counsel's insufficient performance, and that but for his counsel's deficiencies, he would have entered a guilty plea and received a lower sentence rather than proceeding to trial. Herrera requests that the Court vacate his conviction ...


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