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Mejia-Chavez v. United States

United States District Court, S.D. Illinois

December 5, 2016

JOSE IVAN MEJIA-CHAVEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 12-cr-30242-DRH-3

          MEMORANDUM and ORDER

          David R. Herndon, Judge United States District Judge

         I. Introduction

         This 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[1].

         II. Background

         On 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[2], (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).

         On 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.

         III. Law

         A 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).

         Section 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).

         Unless 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).

         Petitioner 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).

         To 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 694).

         As 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.

         IV. Argument

         In the 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.

         a. Petitioner waived his right to file a § 2255 petition

         The 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 parts:

“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 States ...

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