United States District Court, D. Kansas
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
Before the court is defendant's pro se motion pursuant to 28 U.S.C. § 2255 (Doc. 25).
The files and records reflect that defendant was charged in a four count indictment with being an illegal alien in possession of a firearm, possession of a stolen firearm, possession of a firearm by an unlawful user of a controlled substance and possession of methamphetamine (Doc. 6). Pursuant to a written plea agreement and a petition to plead guilty, defendant entered a plea to count 2 of the indictment charging possession of a stolen firearm (Docs. 13 and 14). When defendant entered his guilty plea, the court conducted an inquiry required by Fed. R. Crim. P. 11(b) (Doc. 26). A presentence report was prepared (Doc. 15) and the court sentenced defendant to serve a term of 24 months imprisonment (Doc. 17). At all times, defendant was provided with a fully-qualified interpreter.
Defendant appealed but by its order of December 19, 2013, the Tenth Circuit dismissed the appeal as untimely. In its order, the court noted that defendant was making claims of actual innocence and the failure of his counsel to file a notice of appeal, claims which could be brought pursuant to 28 U.S.C. § 2255 (Doc. 24).
Defendant raises five claims, which can be summarized as follows:
1. Failure by the court to advise defendant of his "Boyking trial rights" and failure to advise defendant pursuant to Rule 11;
2. Ineffective assistance of counsel for failing to argue that "at his removal proceedings, petitioner was not advised of his right to appeal or right to counsel Spanish. The failure to argue that there were irregularities in the underlying deportation order on which his charge of illegal reentry was predicated. There is no record of petitioner validly waiving his right to counsel in his removal proceeding";
3. Ineffective assistance of counsel for not assuring there was an adequate factual basis for his guilty plea and the evidence was insufficient to sustain his conviction. "There is no direct or circumstantial evidence that proves petitioner's intent to knowingly participate in any conspiracy";
4. Ineffective assistance of counsel for not providing defendant the opportunity to "allocate" at sentencing;
5. Ineffective assistance of counsel because "... as a potential basis for direct appeal are almost never suitable because the record almost inevitably will contain the crucial information for assuming them properly petitioner wanted to seek evidentiary support for ineffective assistance claim outside the trial's record and thus present the claim in a post conviction motion."
Claim number 1 is rejected. The court is satisfied that he adequately informed defendant of all his rights, that defendant acknowledged his understanding of those rights and that by pleading guilty, he was giving up virtually all of the rights. The court does not know what "Boyking trial rights" are.
Claim number 2 is rejected because defendant was not charged with illegally reentering the United States and irregularities, if any, at his prior deportation proceedings (four are noted in the PSR) are irrelevant.
Claim number 3 is rejected for two reasons: first, defendant was not charged with a conspiracy. Second, the plea agreement contained the following factual basis, which defendant swore was true and complete:
On March 19, 2013, the defendant was arrested in Wichita, Kansas, by Wichita police officers following a chase and the officers' discovery of a Raven Arms, .25 caliber semi-automatic handgun on his person. The defendant admitted he had stolen the gun from a residence where he had earlier obtained methamphetamine. Raven Arms firearms are not produced in Kansas and the gun discovered in the possession of the ...