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Gonzalez-Gonzalez v. United States

United States District Court, D. Connecticut

April 13, 2017

ROBERTO GONZALEZ-GONZALEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

          Alvin W. Thompson United States District Judge.

         Petitioner Roberto Gonzalez-Gonzalez (the “Petitioner”), [1] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Roberto 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.

         On 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.

         On May 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.

         On 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.

         The 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.

         II. LEGAL STANDARD

         Federal 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).

         Section 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.

         To 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.

         “The 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 omitted)).

         The 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).

         III. DISCUSSION

         A. Direct ...


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