United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Petitioner Luis Avalos-Estrada ("Petitioner") brings this Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 33). Because review of Petitioner's motion and the accompanying court record conclusively shows that he is not entitled to relief, this Court denies the motion without an evidentiary hearing.
I. Factual and Procedural Background
On May 14, 2012, Petitioner was charged by the grand jury with one count of being found in the United States after having previously been removed/deported without consent of the Attorney General of the United States or the Secretary of Homeland Security. Petitioner initially entered a plea of not guilty. On July 24, 2012, Petitioner appeared before this Court and pled guilty to one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326.
A presentence investigation report ("PSR") determined that Petitioner's criminal history was category IV and his base offense level was eight. Given his prior conviction for distribution of a controlled substance and subsequent deportation, Petitioner was subject to a sixteen-point enhancement under Sentencing Guideline 2L1.2(b)(1)(A). Petitioner also received a three-point reduction for his timely acceptance of responsibility, bringing his final offense level to twenty-one. His sentencing guideline range was therefore 57 to 71 months. On October 10, 2012, this Court sentenced Petitioner to fifty-seven months imprisonment to be followed by a two-year term of supervised release. Petitioner was thereafter ordered to be surrendered for deportation.
On January 21, 2014, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 33), claiming ineffective assistance of counsel. Based on a review of the record, this Court finds Petitioner's assignments of error to be without merit.
II. Legal Standard
Under § 2255(a),
[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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,
[t]he judge who receives the motion must properly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion... If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
The court must hold an evidentiary hearing on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence. An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.
A district court may grant relief under § 2255 if it determines "that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." "Review under § 2255 is not an alternative to appellate review for claims that could have been presented on direct appeal but were not." The petitioner may overcome this procedural bar by showing either of "two well recognized exceptions." "First, the movant must show good cause for not raising the issue earlier and actual prejudice to the movant's defense if the issue is not considered." Cause may "be established by showing ...