United States District Court, C.D. Illinois, Peoria Division
ORDER AND OPINION
E. Shadid United States District Judge
cause is before the Court on Petitioner Luis Alberto
Hernandez-Barajas' Motion to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255 (Doc.
A hearing on the Motion is not required because “the
motion, files, and records of the case conclusively show that
the prisoner is entitled to no relief.” Hutchings
v. United States, 618 F.3d 693, 699-700 (7th Cir. 2010)
(quotation omitted). Because Petitioner is not entitled to
relief, the § 2255 motion is DENIED.
February 2016, Hernandez-Barajas was charged in a Superseding
Indictment with Conspiracy to Distribute and Possession with
Intent to Distribute Methamphetamine and Marijuana, in
violation of 21 U.S.C. § 846 (Count 1); and Possession
with Intent to Distribute Methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A). R. 8.
February 15, 2017, Hernandez-Barajas entered a guilty plea to
Count 2 of the Superseding Indictment without a plea
agreement. See R. Feb. 15, 2017 Minute Entry. At the
change of plea hearing, Hernandez-Barajas and an interpreter
for Hernandez-Barajas were sworn in. Plea Tr., R. 22. While
an interpreter was used at the hearing, Hernandez-Barajas
testified that he was able to “speak, read and write
and understand English” “about 90 percent,
” and that he had no difficulty communicating with his
counsel about the case. Id. at 5. The Magistrate
Judge found that Hernandez-Barajas was competent to
understand the proceedings and to enter into a knowing plea.
Id. at 6. Hernandez-Barajas stated that he was not
fully satisfied with his counsel's representation and
advice, but he discussed his decision to enter a plea of
guilty with counsel and was satisfied with counsel's
representation regarding his desire to enter a plea.
Id. at 6-7. The Government read the essential
elements of the offenses and the maximum and minimum
potential penalties involved. Id. at 7-11. The
Magistrate Judge explained the constitutional rights that
Hernandez-Barajas would be waiving by pleading guilty.
Id. at 11-15.
counsel advised the Court that the Government had proposed a
plea agreement whereby Hernandez-Barajas would plead guilty
to Count 2 and the Government would dismiss Count 1. Plea
Tr., R. 22 at 15. Defense counsel explained that
Hernandez-Barajas was unwilling to enter the plea agreement
because he did not want to give up his appeal rights.
Id. Hernandez-Barajas then acknowledged that he did
not wish to enter into the plea agreement and had discussed
this with his attorney. Id. The Court explained that
there were potential immigration consequences resulting from
his conviction, and Hernandez-Barajas said he that he was
“aware of that.” Id. at 16-17.
also acknowledged that he understood that under some
circumstances he would have the right to appeal any sentence
this Court imposed. Plea Tr., R. 22 at 19. The Government
recited the evidence it would present if the matter were to
proceed to trial, and Hernandez-Barajas agreed “in
sum” to the Government's evidence. Id. at
19-23. After some discussion regarding the specifics of the
two counts charged, this Court found it could not accept a
guilty plea to Count 1, but would consider
Hernandez-Barajas's guilty plea to Count 2 if
Hernandez-Barajas wanted to proceed with a plea on that
count. Id. at 23-25. Hernandez-Barajas reiterated
that he did want to go forward with a guilty plea as to Count
2 only, and after reviewing the factual basis and questioning
Hernandez-Barajas about what he did, the Magistrate Judge
accepted Hernandez-Barajas's plea to Count 2.
Id. at 26-28. The Magistrate Judge then filed his
report and recommendation to the district judge. R.14. Count
1 remained set for trial pending sentencing on Count 2. This
Court accepted his guilty plea on March 7, 2017. R.16.
presentence investigation report (“PSR”) was
prepared by the United States Probation Office. PSR, R. 19.
The PSR stated there was a statutory minimum term of 120
months' imprisonment and a maximum of life. Id.
at ¶ 82. The PSR calculated the total offense level as
31 and a criminal history category of III, resulting in a
sentencing guidelines imprisonment range of 135 months'
to 168 months' imprisonment. Id. at ¶ 83.
sentencing hearing was held on December 7, 2017. R. Dec. 7,
2017 Minute Entry. The Government moved to dismiss Count 1 of
the Superseding Indictment. Id.
Hernandez-Barajas' counsel made objections to the PSR,
which were either denied by the Court or withdrawn.
Id. The Court sentenced Hernandez-Barajas to the
mandatory minimum sentence of 120 months' imprisonment,
five years of supervised release, and a $100 special
assessment. Id. The written judgment was entered on
December 11, 2017. R. 26. No. direct appeal was filed.
filed this timely Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. § 2255 (Doc. 1) on May 4, 2018,
alleging his Sixth Amendment rights were violated because he
received ineffective assistance of counsel. Specifically,
Hernandez-Barajas alleges: (1) his counsel was ineffective
because he pushed him to sign a guilty plea and never
discussed the impact of his guilty plea on his appeal rights;
(2) his counsel was ineffective for telling him that if he
qualified for the safety valve he could get a sentence lower
than 120 months' imprisonment; (3) his counsel was
ineffective for making him “go through the
motions” and have an interview with agents when he was
ineligible for the safety valve; and (4) his language barrier
and lack of knowledge of the laws hindered his ability to
fully understand the proceedings.
Government filed its Response (Doc. 4). Hernandez-Barajas did
not file a timely Reply. This Order follows.
person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Relief under § 2555 is an extraordinary remedy
because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). A petitioner
may avail himself of § 2255 relief only if he can show
that there are “flaws in the conviction or sentence
which are jurisdictional in nature, constitutional in
magnitude or result in a complete miscarriage of
justice.” Boyer v. United States, 55 F.2d 296,
298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268
(1995). Section 2255 is limited to correcting errors that
“vitiate the sentencing court's jurisdiction or are
otherwise of constitutional magnitude.”
Guinan v. United States, 6 F.3d 468, 470 (7th Cir.
1993) (citing Scott v. United States, 997 F.2d 340
(7th Cir. 1993)).
§ 2255 motion is not a substitute for a direct appeal.
Doe v. United States, 51 F.3d 693, 698 (7th Cir.
1995), cert. denied, 116 S.Ct. 205 (1995);
McCleese v. United States, 75 F.3d 1174, 1177 (7th
Cir. 1996). Federal prisoners may not use § 2255 as a
vehicle to circumvent decisions made by the appellate court
in a direct appeal. United States v. Frady, 456 U.S.
152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a
petitioner bringing a § 2255 motion is barred from
raising: (1) issues raised on direct appeal, absent some
showing of new evidence or changed circumstances; (2)
non-constitutional issues that could have been but were not
raised on direct appeal; or (3) constitutional issues that
were not raised on direct appeal, absent a showing of cause
for the default and actual prejudice from the failure to
appeal. Belford v. United States, 975 F.2d 310, 313
(7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717, 710-20 (7th
Cir. 1994). “[I]t is generally ...