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United States v. Gomez-Alvarez

United States District Court, Tenth Circuit

July 29, 2013



CARLOS MURGUIA United States District Judge

This case is before the court on defendant Ovex Gomez-Alvarez’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 40). Defendant raises a number of challenges, including whether he knowingly and voluntarily entered a plea of guilty, whether the court had jurisdiction, and whether his counsel was ineffective. Many of defendant’s claims are conclusory and without factual support, and there is no meritorious basis for an evidentiary hearing. In addition, the Tenth Circuit Court of Appeals ruled on several of defendant’s claims on appeal. For the following reasons, the court denies defendant’s motion.

I. Background

On February 23, 2011, a grand jury returned a one-count indictment alleging aggravated illegal re-entry after deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On April 18, 2011, defendant pleaded guilty to Count One of the Indictment without a plea agreement. The court inquired into many aspects of the plea, including its voluntariness, defendant’s knowledge of the consequences, and the discretion involved in sentencing, among other things. Once the court was satisfied that the guilty plea was made knowingly and voluntarily with defendant’s full comprehension of the charges and consequences, it accepted the guilty plea and ordered the United States Probation Office (“USPO”) to prepare a Presentence Investigation Report (“PSR”).

The PSR calculated a base offense level of eight, in accordance with United States Sentencing Guideline § 2L1.2(a). Defendant’s prior felony conviction added a sixteen-level enhancement to the base offense level, and his acceptance of responsibility afforded him a three-level reduction. Defendant’s total offense level was twenty-one, which, coupled with his criminal history category of IV, led to a sentencing range of fifty-seven to seventy-one months.

On July 18, 2011, the court sentenced defendant to sixty months imprisonment with three years of supervised release and a $100 dollar assessment. Defendant appealed. The Tenth Circuit initially appointed counsel, but counsel filed an Anders[1] brief, requesting to withdraw. Agreeing that defendant lacked a nonfrivolous basis for appeal, the Tenth Circuit granted counsel’s request. On May 31, 2012, the Tenth Circuit dismissed defendant’s appeal. On February 7, 2013, defendant filed a pro se motion requesting that the court vacate his sentence under 28 U.S.C. § 2255.

II. Legal Standard

28 U.S.C. § 2255 allows “a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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 [to] move the court which imposed the sentence to vacate, set aside or correct the sentence.” Not every asserted error of law can be raised in a § 2255 motion. Davis v. United States, 417 U.S. 333, 346 (1974). The appropriate inquiry is whether the claimed error of law was a “fundamental defect which inherently results in a complete miscarriage of justice.” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962) (quotation marks omitted)). The court also looks at whether the motion presents exceptional circumstances, where the need for the remedy is apparent. See id.

Section 2255 motions are not available to test the legality of matters that should have been raised on direct appeal. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citing United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993)). A defendant’s failure to present an issue on direct appeal bars him from raising the issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains or can show that a fundamental miscarriage of justice will occur if his claim is not addressed. Id. In addition, issues that have been previously considered and disposed of on direct appeal are barred from a § 2255 motion. Id.

The court must hold an evidentiary hearing unless the motion, files, and records conclusively show that the prisoner is not entitled to relief. United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995). Defendant bears the burden of alleging facts which, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995). The allegations must be specific and particularized, not general or conclusory. Id. The court is not required to fashion defendant’s arguments for him where his allegations are merely conclusory in nature and lack supporting factual allegations. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

III. Analysis

A. Ground One

First, defendant states he was not read his Miranda[2] rights and that defense counsel was ineffective for not filing a motion to suppress any statements taken. Defendant also claims that the facts were not as previously described. Specifically, defendant claims that he was not pulled over for a routine traffic infraction, but rather was stopped as he was walking through a grocery store parking lot.

To prove ineffective assistance of counsel, defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced defendant. Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case. Id. Judicial scrutiny of counsel’s performance is highly deferential. Id. In addition, counsel’s performance must have been completely unreasonable—not merely wrong. Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).

Defendant’s new statements directly contradict information provided in the previous proceedings. There are no supporting facts that support his claim that he was not read his Miranda rights. Without supporting facts, there is no fundamental defect which results in a miscarriage of justice. His claims are conclusory, instead of particularized. Defendant also has not demonstrated that counsel’s performance was prejudicial. He fails to clarify which statements should have been suppressed or ...

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