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Vallar v. United States

United States District Court, Seventh Circuit

June 19, 2013

ROBERT VALLAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, District Judge.

Petitioner Robert Vallar, proceeding pro se, filed a motion for relief pursuant to 28 U.S.C. § 2255.[1] Vallar was granted an extension of time to file his reply brief, and the matter has been fully briefed. For the reasons provided below, Vallar's Motion is denied as moot, and the case is dismissed for lack of jurisdiction.

BACKGROUND

On September 20, 2005, a federal grand jury returned a fifty-one-count indictment against seventeen individuals, including the Petitioner, Robert Vallar. United States v. Vallar, 635 F.3d 271, 277 (7th Cir. 2011). The indictment charged him with various offenses related to a drug conspiracy. Id. Vallar was arrested at his home on May 26, 2005. Id. Thereafter, he waived his Miranda rights and confessed to participating in the drug conspiracy. Id.

On April 13, 2007, a jury found Vallar, and his two co-defendants, Eladio Pedroza, Sr. and Amador Hernandez, guilty on multiple counts. Id. On September 12, 2007, the district court sentenced Vallar to 151 months of imprisonment. Id.

Vallar filed a 28 U.S.C. § 2255 motion, on January 24, 2012 (the "Initial Motion.") In that motion, Vallar claimed his counsel was ineffective for four reasons regarding pretrial, trial and post-trial procedures, discussed below. Vallar then filed an Amended Motion on October 9, 2012. As a result, Vallar's Initial Motion became moot.

In his Amended Motion, Vallar claimed, for the first time, that he "was not properly advised of the benefits of pleading guilty by his trial attorney" because he "was not advised that he would be eligible for a 2-3 point reduction in his sentencing level" if he accepted the plea, and thus he proceeded to trial. (Pet.'s Amended Mot. at 13.) This newly raised claim is the only basis in Vallar's Amended Motion.

The Government asserts that Vallar's Amended Motion should be denied for two reasons: (1) that Vallar's claim is untimely filed; and (2) that Vallar's claim fails because he is unable to demonstrate that his attorney failed to advise him of the merits of a plea agreement, and he cannot demonstrate any prejudicial effect.[2]

LEGAL STANDARD

Vallar seeks relief from his sentence under Section 2255, arguing he was denied the constitutional right to effective assistance of counsel under the Sixth Amendment. Section 2255 provides:

A prisoner in custody under sentence of a 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.

28 U.S.C. § 2255. The relief described here is available only if there was "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1992)). The district court must review the record and draw all reasonable inferences in favor of the government. See Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992). However, as Petitioner filed his petitions pro se, his petition is entitled to a liberal reading. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

Claims of ineffective assistance of counsel are reviewed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under this test, a petitioner must show both: (1) that counsel's performance fell below an objective standard of reasonableness under the circumstances and (2) that the deficient performance prejudiced the defendant. Id. at 688-94. To establish prejudice, the petitioner must prove there is a reasonable probability the proceeding would have had a different result but for the errors of counsel. Id. With plea negotiations, "a defendant must show the outcome of the plea process would have been different with competent advice." Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012).

If a petitioner fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other. See Strickland, 466 U.S. at 697 ("In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant."). A district court's "review of the attorney's performance is highly deferential' and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (citation omitted); Cooper v. United States, 378 F.3d 638, 641 ...


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