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Gonzalez v. United States

United States District Court, D. Connecticut

October 26, 2018




         Petitioner, Marlon Gonzalez (“Petitioner” or “Mr. Gonzalez”), seeks to have his conviction and sentence vacated pursuant to 28 U.S.C. § 2255. He claims three grounds of ineffective assistance of counsel. However, Mr. Gonzalez failed to file his petition within the one year statute of limitations set by AEDPA and has failed to show that he is entitled to equitable tolling, nor does he show that he is entitled to relief on the merits. Thus, as explained further below, Mr. Gonzalez's § 2255 motion is DENIED.


         A grand jury indicted Marlon Gonzalez on November 19, 2014 for conspiracy to possess with the intent to distribute cocaine and crack cocaine. USA v. Gonzalez, No. 14-cr-225 (hereinafter “Gonzalez”), [Dkt. 1 (Crim. Compl.)]. On September 9, 2015, Mr. Gonzalez pled guilty to conspiracy to possess with intent to distribute 280 grams or more of cocaine base in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(A) and 846, as alleged in Count One of the indictment. Gonzalez, [Dkt. 206 (Plea Agreement)]. The violation carried a statutory mandatory minimum sentence of incarceration of 120 months. Id. at 2.

         In the Plea Agreement, the parties stipulated that a quantity of 280 grams of cocaine base was reasonably foreseeable to Mr. Gonzalez as a result of his participation in the conspiracy charged in Count One. Id. at 4. The parties further stipulated that Mr. Gonzalez's base offense level under U.S.S.G. § 2D1.1(C) is 30, three levels would be added under U.S.S.G. § 3B1.1(b) as a result of Mr. Gonzalez's role as a manager or supervisor of the criminal activity, two levels would be added under U.S.S.G. § 2D1.1(b)(1) because Mr. Gonzalez possessed a firearm during the offense, and three levels would be deducted under U.S.S.G. § 3E1.1 for acceptance of responsibility, assuming he remained eligible. Id. With a total offense level of 32 and a criminal history category of II, the applicable Sentencing Guidelines range was 135 to 168 months of imprisonment. Id.

         Petitioner's Plea Agreement states, "[t]he defendant acknowledges that under certain circumstances he is entitled to challenge his conviction and sentence. With the exception of habeas claims asserting ineffective assistance of counsel, the basis for which the defendant neither knew, nor could have known, at the time this plea agreement was entered into, defendant agrees not to appeal or collaterally attack in any proceeding, including but not limited to a motion under 28 U.S.C. §2255 and/or §2241, the conviction or sentence imposed by the Court if that sentence does not exceed 120 months of imprisonment." Gonzalez, [Dkt. 206 at 5]. He also signed a petition acknowledging his understanding of the terms of the Plea Agreement. Gonzalez, [Dkt. 205 (Petition to Enter Plea of Guilty)]. Finally, this Court routinely advises each defendant at sentencing of their right to appeal, the manner of filing an appeal, and of the right to be represented by counsel should they choose to pursue an appeal, as well as reminding the defendant of the terms of any appeal waiver in the plea agreement. Thus, Petitioner was repeatedly advised of and acknowledged understanding his right to appeal, his waiver of that right and his right to file and the permissible bases for filing a habeas petition.

         On January 20, 2016, this Court sentenced Mr. Gonzalez to the statutory mandatory minimum of 120 months in prison, to be followed by a 4 year term of supervised release. Gonzalez, [Dkt. 355 (Judgment)]. The final judgment was entered on January 29, 2016. Id. Mr. Gonzalez did not pursue a direct appeal of the judgment. The time to file a direct appeal expired 14 days after the entry of judgment, February 14, 2016. See Fed. R. App. P. 4(b)(1)(A).

         Mr. Gonzalez executed his § 2255 motion on June 13, 2017 and it was filed with the Court on June 19, 2017. [Dkt. 1 (§ 2255 Motion)]. His initial § 2255 motion was followed by a second motion with two addenda, which the Court understands to actually be the memorandum of law in support of his motion which he cited to in his initial motion, see [Dkt. 3], and later a reply to the Government's response to the order to show cause, see [Dkt. 9-1]. The Court has reviewed and taken into account Petitioner's arguments in each of these filings. The Court has also taken into account Petitioner's pro se status and construed his arguments liberally accordingly. See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).

         Mr. Gonzalez's motion is based on a claim of ineffective assistance of counsel on three grounds. First, Mr. Gonzalez argues that his attorney improperly failed to object to the insufficiency of the indictment, suggesting that the Government failed to allege, and/or failed to prove, that Mr. Gonzalez knew he possessed a controlled substance. [Dkt. 1 at 5]. Second, Mr. Gonzalez argues that his counsel was ineffective for failing to object to the two level enhancement to his offense level under U.S.S.G. §2D1.1(b)(1) for possession of a firearm during the course of narcotics trafficking. [Dkt. 1 at 6]. And third, Mr. Gonzalez argues that his counsel was ineffective for failing to object to the three level enhancement under U.S.S.G. §3B1.1(b) for his role as manager or supervisor of an offense involving five or more persons. Id. at 8.

         The Respondent argues that Mr. Gonzalez's motion fails because it is untimely-he filed it more than one year after the judgment became final and there is no basis for equitable tolling of the statute of limitations-and because his claims are procedurally defaulted due to his failure to pursue them on direct appeal. [Dkt. 5 (Resp. to Order to Show Cause) at 2-4]. In addition, Respondent argues that, even if counsel was ineffective for failing to object to the sentencing enhancements, Mr. Gonzalez was not prejudiced by those enhancements because he received the minimum sentence required by statute-120 months. Id. at 4. The sentence imposed represented a downward departure and variance below the applicable recommended Guideline range calculated by the Court applying the challenged enhancements. Consequently, the challenged enhancements did not affect Petitioner's sentence.

         Legal Standard

         Section 2255 enables a prisoner in federal custody to petition a federal court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Section 2255 imposes 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 exercise of due diligence.” Id. at § 2255(f).

         Relief under Section 2255 is generally available “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 quotation marks and citation omitted). Section 2255 provides that a district court should grant a hearing “[u]nless the motion ...

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