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United States v. Perez-Alcala

United States District Court, D. Kansas

August 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
EDUARDO PEREZ-ALCALA, Defendant. Civil Action No. 17-2295-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         On December 15, 2015, the Court sentenced defendant to 162 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #2033) filed May 22, 2017. On May 23, 2017, the Court directed the parties to file briefs on the limited issue of potential procedural bars to defendant's motion. Memorandum And Order (Doc. #2035); see United States v. Allen, 16 F.3d 377, 378-79 (10th Cir. 1994) (court may raise and enforce procedural bar sua sponte if doing so furthers interests of judicial efficiency, conservation of scarce judicial resources and orderly and prompt administration of justice). In particular, the Court directed the parties to address whether defendant's motion is barred as untimely. On June 8, 2017, the government filed a brief on the issue. See Government's Response To Court's Order (Doc. #2037). Defendant filed a reply and also requests copies of documents so that he may file a memorandum in support of his motion to vacate. See Objection To Government's Response (Doc. #2045) filed July 3, 2017; Motion To Compel Discovery In Civil Proceeding Pursuant To Fed.R.Civ.P. 26 (Doc. #2039) filed June 16, 2017 and Motion For Order To Produce Redacted Copies Of Sealed Documents (Doc. #2032) filed May 22, 2017. For reasons stated below, the Court overrules defendant's requests for copies, CIVIL ACTION No. 17-2295-KHV overrules defendant's motion to vacate and denies a certificate of appealability.

         Factual Background

         On October 3, 2012, a grand jury charged Eduardo Perez-Alcala and some 50 other defendants with conspiracy to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine. See Second Superseding Indictment (Doc. #402), Count 1. The indictment also charged defendant with conspiracy to commit money laundering. Id., Count 2. On May 22, 2013, defendant pled guilty to both counts.[1] See Plea Agreement (Doc. #637). Defendant had a total offense level of 41 with a criminal history category I for a guideline range of 324 to 405 months in prison. See Presentence Investigation Report (Doc. #1810) filed August 11, 2015, ¶ 170. On December 15, 2015, the Court sentenced defendant to 162 months in prison on Counts 1 and 2, with the terms to be served concurrently. Defendant did not appeal. Michael M. Jackson represented defendant throughout the proceedings.

         On October 20, 2016, defendant asked the Court to unseal the plea agreement and sentencing transcript so that he could litigate his “appeal.” Motion To Unseal Documents, Plea Agreement [And] Sentencing Transcript (Doc. #1983). The Court overruled defendant's request to unseal because (1) he had not filed an appeal and any appeal at that stage would have been untimely, (2) he did not specifically explain how the interests of the parties or the public had changed and (3) he had not shown a particularized need to unseal any documents so that he could litigate an appeal or any post-conviction motion. See Order (Doc. #2007) filed January 10, 2017 at 1-2.

         On May 22, 2017, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Defendant asserts that Jackson provided ineffective assistance (1) at the pretrial motions stage, (2) during plea negotiations, (3) at sentencing, when he did not properly object to the enhancement of defendant's sentence under Section 3B1.2 of the United States Sentencing Guidelines and (4) after sentencing, when he did not consult defendant about an appeal or file an appeal as requested. Motion Under 28 U.S.C. § 2255 (Doc. #2033) at 3-7.

         Analysis

          The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989).

         The government asserts that defendant's claim is barred as untimely. See Government's Response To Court's Order (Doc. #2037) filed June 8, 2017 at 2-5. Section 2255 provides a one-year period of limitation which runs from the latest of --

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). If defendant does not directly appeal his conviction or sentence, the conviction becomes final upon the expiration of the time to take a direct criminal appeal. United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006). Here, on December 21, 2015, the Court entered judgment. See Judgment In A Criminal Case (Doc. #1919). Under Rule 4(b) of the Federal Rules of Appellate Procedure, defendant's judgment became final 14 days later, on January 4, 2016. Therefore, under the ...


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