United States District Court, D. Connecticut
RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT
W. Thompson United States District Judge.
Roberto Gonzalez-Gonzalez (the “Petitioner”),
proceeding pro se, has filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. He
makes four claims of ineffective assistance of counsel. For
the reasons set forth below, the motion is being denied,
without a hearing but with leave to file a motion for
reconsideration as to Ground One.
FACTUAL AND PROCEDURAL BACKGROUND
Gonzalez-Gonzalez is a native and citizen of Mexico and has
been previously deported from the United States on three
occasions: November 12, 2009, July 7, 2011, and November 10,
2011. Upon his removal on November 10, 2011, the Petitioner
was advised by the Department of Homeland Security that he
was permanently barred from re-entry into the United States
based on his prior conviction for an aggravated felony. As
reflected in paragraph 34 of the Presentence Report, the
Petitioner was convicted for violating the Georgia Controlled
Substances Act and was sentenced in Delkab County Superior
Court on February 11, 2000 to five years in jail suspended
after three years.
December 5, 2012, the Petitioner was found in the District of
Connecticut. He did not seek or obtain permission of the
Attorney General or his successor, the Secretary of the
Department of Homeland Security, to file an application to
re-enter the United States.
7, 2013, a grand jury in the District of Connecticut returned
an indictment charging the Petitioner with Reentry of Removed
Alien, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2). On August 13, 2013, the Petitioner pled guilty and
entered into a plea agreement with the government dated
August 13, 2013 (the “Plea Agreement”). The
Presentence Report calculated the total offense level to be
21. The probation officer determined that the base offense
level was 8 pursuant to U.S.S.G. § 2L1.2, and then added
16 levels, pursuant to § 2L1.2(b)(1)(A)(i), because the
Petitioner had been previously deported after sustaining a
conviction for a felony drug trafficking offense within the
previous 15 years and for which the sentence imposed exceeded
13 months. Three levels were subtracted pursuant to U.S.S.G.
§ 3E1.1 for acceptance of responsibility. The probation
officer determined that the Petitioner fell within Criminal
History Category IV. The Presentence Report accurately
reflected that for a total offense level of 21 and Criminal
History Category IV, the advisory range under the Sentencing
Guidelines was 57 to 71 months of imprisonment. However, in
the Plea Agreement, the government agreed not to seek a
sentence higher than the low-end of the range, i.e. 57
months. The government also agreed that the Petitioner could
challenge the application of the 16-level enhancement.
November 4, 2013, the court imposed a Guidelines sentence of
57 months, to be followed by supervised release for a period
of 3 years. Both parties reserved their right to appeal and
to oppose each other's appeal of the sentence imposed. No
direct appeal was filed.
Petitioner presents four separate claims: (1) ineffective
assistance of counsel for failure to file a direct appeal;
(2) ineffective assistance of counsel for failure to argue
against the 16-level enhancement; (3) ineffective assistance
of counsel for failure to argue that the Petitioner's
criminal history was overstated; and (4) ineffective
assistance of counsel for failing to argue and investigate
the fact that the Petitioner has “mental
disabilities”. Petition (Doc. No. 1) at 8.
prisoners can challenge a criminal sentence pursuant to 28
U.S.C. § 2255 “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of
law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir.
1996) (internal citation and quotation marks omitted). A
petitioner may obtain review of his claims if he has raised
them at trial or on direct appeal; if not, such a procedural
default can be overcome by a showing of “cause”
and “prejudice”, Ciak v. United States,
59 F.3d 296, 302 (2d Cir. 1995) abrogated on other grounds by
Mickens v. Taylor, 535 U.S. 162 (2002) (quoting
Wainwright v. Sykes, 433 U.S. 72, 87 (1977)), or a
showing of constitutionally ineffective assistance of
counsel, see Murray v. Carrier, 477 U.S. 478, 487-88
(1986); Johnson v. United States, 313 F.3d 815, 817
(2d Cir. 2002).
2255 provides that a district court should grant a hearing
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief”. 28 U.S.C. § 2255(b). However, district
courts may “exercise their common sense”,
Machibroda v. United States, 368 U.S. 487, 495
(1962), and may draw upon personal knowledge and recollection
of the case, see Blackledge v. Allison, 431 U.S. 63,
74 n.4 (1997); United States v. Aiello, 900 F.2d
528, 534 (2d Cir. 1990). Thus, a § 2255 petition may be
dismissed without a hearing if, after a review of the record,
the court determines that the allegations are insufficient as
a matter of law.
prevail on an ineffective assistance of counsel claim, the
petitioner must show that his “counsel's
representation fell below an objective standard of
reasonableness” and that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). ”Failure to make the required
showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim.”
Id. at 700.
court ‘must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance, ' bearing in mind
that ‘[t]here are countless ways to provide effective
assistance in any given case' and that ‘[e]ven the
best criminal defense attorneys would not defend a particular
client in the same way.'” United States v.
Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 689). Courts should not
second-guess the decisions made by defense counsel on
tactical and strategic matters. See United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998). “The
court's central concern is not with ‘grad[ing]
counsel's performance, ' but with discerning
‘whether, despite the strong presumption of
reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process
that our system counts on to produce just
results.'” Aguirre, 912 F.2d at 561 (quoting
Strickland, 466 U.S. at 696-67) (internal citations
second prong of the Strickland test requires a defendant to
show that “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466
U.S. at 694. “‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. That requires a substantial, not just
conceivable, likelihood of a different result.”
Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)
(internal quotations and citation omitted) (emphasis added).