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Noel Basaldua-Lopez v. United States of America

December 4, 2012

NOEL BASALDUA-LOPEZ, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



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

MEMORANDUM AND ORDER

In 2010, Petitioner Basaldua-Lopez was sentenced by this Court after pleading to and being found guilty of assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), and possession of contraband by a federal inmate, 18 U.S.C. § 1791(a)(2); United States v. Noel Basaldua-Lopez, No. 09-cr-40064-GPM, Doc. 38. At the time, Mr. Basaldua-Lopez was serving a 30 month sentence at the United States Penitentiary in Marion, Illinois (USP-Marion) for two counts of illegal entry into the United States from the Southern District of California*fn1 (Doc. 36, p.3). Mr. Basaldua-Lopez was sentenced to 71 months imprisonment on Count 1 and 60 months imprisonment on Count 2, the terms to run concurrently (Doc. 38). Mr. Basaldua-Lopez timely appealed his sentence (Doc. 43), but the appeal was dismissed by the Seventh Circuit after counsel filed an Anders brief because there were no non-frivolous issues for appeal (Doc. 55). Mr. Basaldua-Lopez then filed this § 2255 petition, requesting an evidentiary hearing.

ANALYSIS

I. Timeliness

Section 2255 motions generally must be filed within a year of the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f). "When a defendant in a federal prosecution takes an unsuccessful direct appeal from a judgment of conviction," that judgment becomes final "when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 524-25 (2003). In federal court, the time for filing a petition for certiorari expires "90 days after entry of the Court of Appeal's judgment." Id. at 525; See also Latham v. United States, 527 F.3d 651, 652 (7th Cir. 2008) (one-year time period in which to file motion to vacate began to run 90 days after dismissal of appeal). In the instant case, Mr. Basaldua-Lopez was sentenced by the District Court on March 15, 2010 (Doc. 38). On July 22, 2010, Mr. Basaldua-Lopez's appeal was dismissed by the Seventh Circuit. United States v. Noel Basaldua-Lopez, 386 Fed.Appx. 567 (7th Cir. 2010), No. 10-1719, Doc. 55. Mr. Basaldua-Lopez filed a petition for Section 2255 relief on September 9, 2011. United States v. Noel Basaldua-Lopez, No. 09-cv-40064-GPM, Doc. 1. Mr. Basaldua-Lopez's petition was filed within a year of the date on which the judgment of conviction became final, and his petition is therefore timely.

II. Legal Standard

Relief under § 2255 is "an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007), cert. denied, 551 U.S. 1132 (2007). Accordingly, habeas relief under § 2255 is "reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993).

"To succeed on a § 2255 petition a convicted defendant must show that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id.

In his petition, Mr. Basaldua-Lopez raises three claims for relief: (1) that the Court impermissibly subjected him to double jeopardy by "double counting" the injury to the victim during sentencing; (2) that the Court failed to adhere to the sentencing factors in 18 U.S.C. § 3553(a); and (3) that counsel was ineffective for failing to object to the sentencing calculation and for failing to investigate or zealously argue on his behalf at sentencing (Doc. 1, pp.1-4). Mr. Basaldua-Lopez also claims the offenses for which he was convicted occurred because of the negligence of the Bureau of Prisons, which "breached" its own "security measures." Id. at 3. Mr. Basaldua-Lopez requests an evidentiary hearing to "resolve" these issues. Id.

III. Evidentiary Hearing

A district court need not grant an evidentiary hearing in all § 2255 cases. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007), cert. denied, 551 U.S. 1132 (2007). "Such a hearing is not required if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Id., quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (internal quotation marks omitted). See also United States v. Taglia, 922 F.2d 413, 419 (7th Cir. 1991), cert. denied, 500 U.S. 927 (1991) ("if there is no reason to suppose that a hearing would produce evidence justifying the grant of a new trial, there is no reason to hold a hearing").

In the instant case, the motion and the files and records before the Court conclusively demonstrate Mr. Basaldua-Lopez is not entitled to a hearing on his motion for the foregoing reasons.

IV. Claim 1: Double Jeopardy

Mr. Basaldua-Lopez first alleges the Court violated his Fifth Amendment right against double jeopardy by adding three points to his base offense level of 14 for aggravated assault pursuant to U.S.S.G. ยง 2A2.2(b)(3)(A) (Doc. 1, p.1). He argues the offense of aggravated assault already includes a presumption that bodily injury has occurred, and therefore ...


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