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Frediando Contreras v. United States of America

December 3, 2010

FREDIANDO CONTRERAS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

A. Introduction and Background

Before the Court is Frediando Contreras's December 2009 petition to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Analysis of the petition begins with an overview of the procedural history of the underlying criminal case, United States v. Contreras (Case No. 06-cr-30083-MJR).

Via a superseding indictment issued August 9, 2006, Contreras was charged with one count of conspiracy to distribute heroin, cocaine and marihuana from May 2004 to May 2006, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.

On July 2, 2007, Contreras entered an open guilty plea. On December 14, 2007, the undersigned Judge sentenced Contreras to a total term of 210 months' imprisonment, 5 years' supervised release and a $100.00 assessment. Judgment was entered accordingly on December 17, 2007.

Contreras appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit appointed counsel, Susan Kister, to represent Contreras. Kister filed an Anders brief in which she addressed the two arguments that could conceivably support a challenge to a sentencing enhancement, but then concluded that neither claim had merit. See Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit addressed the issues raised by Kister, agreed that the issues were frivolous and dismissed Contreras's appeal on December 4, 2008. The Court issued its mandate on April 10, 2009.

In December 2009, Contreras moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion survived threshold review in July 2010. The Court set a briefing schedule. The Government filed a timely response, and Contreras filed a reply (Docs. 7, 8). For the reasons stated below, the Court denies Contreras's request for relief and dismisses his § 2255 petition.

An evidentiary hearing is not warranted. Contreras asserts ineffective assistance claims. Such claims often require an evidentiary hearing, "because they frequently allege facts that the record does not fully disclose." Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008). But the issues raised here can be resolved on the existing record, which conclusively demonstrates that Contreras is entitled to no relief. See Rule 8(a) of RULES GOVERNING SECTION 2255PROCEEDINGS; Almonacid v. U.S., 476 F.3d 518, 521 (7th Cir.), cert. denied, 551 U.S. 1132 (2007); Gallo-Vasquez v. U.S., 402 F.3d 793, 797 (7th Cir. 2005); Galbraith v. U.S., 313 F.3d 1001, 1010 (7th Cir. 2002). Stated another way, Contreras has not alleged facts that, if proven, would entitle him to relief. See Sandoval v. U.S., 574 F.3d 847, 850 (7th Cir. 2009).

B. Analysis of § 2255 Petition

## APPLICABLE LEGAL STANDARDS

28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which sentenced him to vacate, set aside or correct her sentence, if "the sentence was imposed in violation of the Constitution or laws of the United States, ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law."

Relief under § 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 proceedings may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process"). Section 2255 has been described as "the federal-prisoner substitute for habeas corpus." U.S. v. Boyd, 591 F.3d 953, 955 (7th Cir. 2010). Accord Washington v. Smith, 564 F.3d 1350, 1351 (7th Cir. 2009)(referring to a § 2255 petition as "the federal prisoner's equivalent to a § 2254 petition attacking a criminal judgment entered by a state court").

As the Seventh Circuit has declared, § 2255 relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Accord Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations"). And § 2255 cannot be used as a substitute for a direct appeal or to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). Accord Sandoval, 574 F.3d at 850 ("claims cannot be raised for the first time in a § 2255 motion if they could have been raised at trial or on direct appeal").

In the case at bar, Contreras tenders two grounds for ยง 2255 relief, both premised on ineffective assistance ...


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