United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE, UNITED STATES SENIOR DISTRICT JUDGE.
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255 (Doc. 1). For the reasons stated below, all of
Petitioner's claims are DENIED except for his claim that
his trial counsel provided ineffective assistance for failing
to file a requested notice of appeal. The Court will hold an
evidentiary hearing on Petitioner's remaining ineffective
assistance of counsel claim.
is currently incarcerated at McRae Correctional Institution
in McRae, Georgia. On October 11, 2016, Petitioner, an alien,
pleaded guilty before Magistrate Judge Jonathan E. Hawley to
illegal reentry into the United States after deportation, in
violation of 8 U.S.C. §§ 1326(a) and (b).
United States v. Gonzalez-Olvera, 16-cr-10041 (C.D.
Ill. 2017) (Doc. 9). On January 18, 2017, this Court adopted
Judge Hawley's Report and Recommendation and accepted
Petitioner's guilty plea. Id. (Doc. 14). On
January 25, 2017, Petitioner was sentenced to 37 months
imprisonment and three years of supervised release.
Id. (Doc. 17). Petitioner did not appeal his
conviction or sentence, but instead brought this § 2255
collateral attack on December 29, 2017.
argues that his trial counsel provided ineffective assistance
by failing to file a notice of appeal, and for advising
Petitioner that he would be able to stay in the United States
when he finished serving his sentence. (Doc. 1 at 4, 6). He
also contends that the district court denied him “due
process to a final hearing and plea, and failed to
consider” him “for supervise[d] release with his
family”. Id. He further alleges that his
Fourteenth Amendment rights were violated by the Board of
Immigration. Id. Lastly, Gonzalez-Olvera complains
that his prison “legal assistant” has been
retaliated against (though Petitioner does not say by
who) by denying him access to the law library and
making him pay for forms that “others get for
free.” Id. at 9. Petitioner requests the Court
to order the Attorney General to consider him for asylum
pursuant to 8 U.S.C. § 1253, allow supervised release
when Petitioner's federal sentence expires, and grant him
a bond hearing.
March 12, 2018, the Government filed a motion for extension
of time to file a response and for an order directing
Petitioner's trial counsel, Robert Alvarado, to submit an
affidavit in response to Petitioner's Ineffective
Assistance of Counsel claims. (Doc. 6). The Court granted the
motion. On April 10, 2018, the Government filed a response
and an affidavit from attorney Alvarado addressing
Petitioner's ineffective assistance of counsel claims.
This matter is now ripe for decision.
2255 of Title 28 of the United States Code provides that a
sentence may be vacated, set aside, or corrected “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.”
“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). Thus, §
2255 relief is limited to correcting errors of constitutional
or jurisdictional magnitude or errors constituting
fundamental defects that result in complete miscarriages of
justice. E.g., Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994), overruled on other
grounds by United States v. Ceballos, 26 F.3d 717 (7th
§ 2255 motion is not a substitute for a direct
appeal.” Coleman v. United States, 318 F.3d
754, 760 (7th Cir. 2003) (citing Doe v. United
States, 51 F.3d 693, 698 (7th Cir. 1995)). Claims other
than ineffective assistance of counsel cannot be raised for
the first time in a § 2255 motion if they could have
been raised on direct appeal. McCoy v. United
States, 815 F.3d 292, 295 (7th Cir. 2016). “A
federal prisoner cannot bring defaulted claims on collateral
attack unless he shows both cause and prejudice for the
default.” Id. (citing Hale v. United
States, 710 F.3d 711, 713 (7th Cir. 2013); Gant v.
United States, 627 F.3d 677, 683 (7th Cir. 2010)).
“Absent a showing of both cause and prejudice,
procedural default will only be excused if the prisoner can
demonstrate that he is ‘actually innocent' of the
crimes of which he was convicted.” Id. (citing
Torzala v. United States, 545 F.3d 517, 522 (7th
Court initially observes that Gonzalez-Olvera failed to file
an appeal in this case, even though he was advised of his
right to do so at sentencing on January 25, 2017.
See January 25, 2017, Minute Entry. Gonzalez-Olvera
did not waive his right to file an appeal by pleading guilty.
Claims other than ineffective assistance of counsel cannot be
raised for the first time in a § 2255 motion if they
could have been raised on direct appeal. McCoy, 815
F.3d at 295 (7th Cir. 2016). Petitioner's due process,
retaliation, and Board of Immigration claims could have been
raised on direct appeal. As such, those claims are
procedurally defaulted and cannot be raised for the first
time now. However, because Petitioner claims that his
attorney failed to file a notice of appeal despite being
requested to do so, the Court will address these claims. As
will be described in more detail below, these claims are
meritless and/or not cognizable in a § 2255 proceeding.
Petitioner has properly brought ineffective assistance of
counsel claims in this § 2255 Motion. As will be
discussed below, one of Petitioner's claims entitles him
to an evidentiary hearing while the remainder of his claims
are without merit under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Claims Other Than Ineffective Assistance of Counsel
argues that the district court denied him “due process
to a final hearing and plea, and failed to consider”
him “for supervise[d] release with his family”.
He further alleges that his Fourteenth Amendment rights were
violated by the Board of Immigration, and that his prison
“legal assistant” has been retaliated against by
denying him access to the law library and making him pay for
forms that “others get for free.” Petitioner
requests the Court to order the Attorney General to consider