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Hernandez-Barajas v. United States

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

June 24, 2019



          James E. Shadid United States District Judge

         This 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. 1).[1] 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.

         I. BACKGROUND

         In 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.

         On 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.

         Defense 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.

         Hernandez-Barajas 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.

         A 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.

         The 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.

         Hernandez-Barajas 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.

         The Government filed its Response (Doc. 4). Hernandez-Barajas did not file a timely Reply. This Order follows.


         A 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)).

         A § 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 ...

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