United States District Court, S.D. Illinois
MEMORANDUM and ORDER
R. Herndon, Judge United States District Judge
matter is before the Court on petitioner Jose Ivan
Mejia-Chavez's motion to vacate, set aside, or correct
sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). In his
§ 2255 petition, Mejia-Chavez brings an array of
arguments seeking relief for ineffective assistance of
counsel. The government filed its response in opposition of
Mejia-Chavez's § 2255 petition (Doc. 5). For the
following reasons, petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255
(Doc. 1) is denied.
August 22, 2012, the grand jury returned an indictment
against Mejia-Chavez for conspiracy to distribute and possess
with the intent to distribute cocaine in violation of 21
U.S.C. § 841(b)(1)(A)(viii) (Count 1); illegal re-entry
after deportation in violation of 8 U.S.C. § 1326(a)
(Count 3); and interstate travel in support of racketeering
in violation of 18 U.S.C. § 1952(a)(3) (Count 10).
United States v. Mendez-Velasquez et al,
12-cr-30242-DRH-3, (Doc. 30). Mejia-Chavez pleaded guilty to
Counts 1, 3, and 10 of the indictment on November 18, 2014
(Cr. Doc. 394). That same day, the parties filed a plea
agreement(Cr. Doc. 397) and stipulation of facts (Cr. Doc.
398). On March 20, 2015, Mejia-Chavez was sentenced to 120
months on each of Counts 1, 3, & 10, all terms to run
concurrently (Cr. Doc. 418). Thereafter, on August 3, 2015,
Mejia-Chavez filed a notice of appeal (Cr. Doc. 37). The
Seventh Circuit later dismissed the appeal as untimely on
November 6, 2015 (Cr. Doc. 453).
February 16, 2016, Mejia-Chavez filed a timely motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C.
§ 2255, in which he raises four arguments: (1)
ineffective assistance of counsel by failing to file a direct
appeal (2) ineffective assistance of counsel for failing to
make the government file a Rule 35 motion, (3) ineffective
assistance of counsel by failing to secure a 25% reduction of
his sentence based on petitioner's medical condition and
(4) ineffective assistance of counsel for failing to
adequately challenge the government's recommendation for
and Court's imposition of sentencing enhancements. The
Court shall address each argument in turn.
prisoner may move to vacate, set aside or correct his
sentence if he claims “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.” 28 U.S.C. § 2255(a).
2255 is an extraordinary remedy because it asks the district
court essentially “to reopen the criminal process to a
person who has already had an opportunity for full
process.” Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007) (citing Kafo v. United
States, 467 F.3d 1063, 1068 (7th Cir.2006)). Thus,
relief under Section 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)),
as a collateral attack pursuant to Section 2255 is not a
substitute for a direct appeal. Varela v. United
States, 481 F.3d 932, 935 (7th Cir. 2007).
a movant demonstrates changed circumstances in fact or law,
he may not raise issues already decided or waived on direct
appeal. Olmstead v. United States, 55 F.3d 316, 319
(7th Cir. 1995). A petitioner cannot raise constitutional
issues that he could have, but did not directly appeal,
unless he shows good cause for, and actual prejudice from,
his failure to raise them on appeal, or unless failure to
consider the claim would result in a fundamental miscarriage
of justice. Bousley v. United States, 523 U.S. 614,
622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87
(1977); Fountain v. United States, 211 F.3d 429, 433
(7th Cir. 2000). Likewise, a Section 2255 motion cannot
pursue non-constitutional issues that were not raised on
direct appeal regardless of cause and prejudice. Lanier
v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The
only way such issues could be heard in the Section 2255
context is if the alleged error of law represents “a
fundamental defect which inherently results in a complete
miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185 (1979).
raises four claims, all of which he purports to be claims of
ineffective assistance of counsel. To succeed on an
ineffective assistance of counsel claim, a petitioner must
demonstrate (1) his attorney's performance “fell
below an objective standard of reasonableness, ” and
(2) “but for counsel's unprofessional errors the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Either Strickland prong may be analyzed first; if that prong
is not met, it will prove fatal to plaintiff's claim.
Strickland, 466 U.S. at 697; Ebbole v. United
States, 8 F.3d 530, 533 (7th Cir. 1993).
satisfy the first prong, “the Court must determine
whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of
professionally competent assistance.”
Strickland, 466 U.S. at 690. The petitioner's
burden is heavy because the Strickland test is “highly
deferential to counsel, presuming reasonable judgment and
declining to second guess strategic choices.”
United States v. Shukri, 207 F.3d 412, 418 (7th Cir.
2000) (quotations omitted). To satisfy the second prong, a
petitioner must demonstrate to a “reasonable
probability” that without the unprofessional errors,
the result of the proceeding would have been different.
Fountain, 211 F.3d at 434; Adams v.
Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). “A
reasonable probability is defined as one that is sufficient
to undermine confidence in an outcome.” Adams,
453 F.3d at 435 (citing Strickland, 466 U.S. at
mentioned above, a district court's analysis begins with
a “strong presumption that the defendant's attorney
rendered adequate representation of his client.”
United States v. Meyer, 234 F.3d 319, 325 (7th Cir.
2000). Thus, a petitioner must overcome a heavy burden to
prove that his attorney was constitutionally deficient.
Shell v. United States, 448 F.3d 951, 955 (7th Cir.
2006). In order to establish that counsel's performance
was deficient, the defendant must show errors so serious that
“counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.”
Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir. 2012).
The Court now turns to petitioner's claims.
instant matter, the Court cannot say that Attorney Robert
Elovitz's performance significantly prejudiced
Mejia-Chavez or that Mr. Elovitz's representation fell
below an objective standard of reasonableness. Further, the
Court cannot say that despite the errors alleged by
Mejia-Chavez in his petition, the results of his criminal
proceedings would have been different. More specifically,
Mejia-Chavez waived his right to file an appeal or a §
2255 petition at the time he entered a plea agreement with
the government that resulted in a sentence 48 months below
the guideline recommendation.
Petitioner waived his right to file a § 2255
Court shall first address the fact that Mejia-Chavez waived
his right to file this § 2255 petition at the time he
entered a plea agreement with the government. Mejia-Chavez
entered into a written plea agreement with the government for
certain benefits on November 18, 2014 (Cr. Doc. 397). In
exchange for the benefits he received, he waived his right to
a direct appeal and to a collateral attack under Section
2255. Specifically, the plea agreement provides in relevant
“2. The Defendant is aware that Title 18, Title 28, and
other provisions of the United States Code afford every
defendant limited rights to contest a conviction and/or
sentence through appeal or collateral attack. However, in
exchange for the recommendations and concessions made by the
United States in this plea agreement, the Defendant knowingly
and voluntarily waives his right to contest any aspect of his
conviction and sentence that could be contested under Title
18 or Title 28, or under any other provision of federal
law, except that if the sentence imposed is in excess of
the Sentencing Guidelines as determined by the Court (or any
applicable statutory minimum, whichever is greater), the
Defendant reserves the right to appeal the reasonableness of
the sentence. The Defendant acknowledges that in the
event such an appeal is taken, the Government reserves the
right to fully and completely defend the sentence imposed,
including any and all factual and legal findings supporting
the sentence, even if the sentence imposed is more severe
than that recommended by the Government.
3. The Defendant's waiver of his right to appeal or bring
collateral challenges shall not apply to: 1) any subsequent
change in the interpretation of the law by the United States
Supreme Court or the United States Court of Appeals for the
Seventh Circuit that is declared retroactive by those Courts
and that renders the defendant actually innocent of the
charges covered herein; and 2) appeal based upon Sentencing
Guideline amendments that are made retroactive by the United