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Gonzalez-Olvera v. United States

United States District Court, C.D. Illinois, Peoria Division

May 16, 2018

JESUS VENTURA GONZALEZ-OLVERA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER & OPINION

          JOE BILLY MCDADE, UNITED STATES SENIOR DISTRICT JUDGE.

         This 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.

         Background

         Petitioner 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.

         Petitioner 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.

         On 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.

         Legal Standards

         Section 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 Cir. 1994).

         “A § 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 Cir.2008)).

         Discussion

         The 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.

         Furthermore, 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).

         I. Claims Other Than Ineffective Assistance of Counsel

         Gonzalez-Olvera 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 ...


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