Duarte v. USA
MEMORANDUM DECISION and Order Denying Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 USC 2255. Signed by Judge Ted Stewart on 09/27/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER
28 U.S.C. § 2255
UNITED STATES OF AMERICA,
Civil Case No. 2:11-CV-297 TS
Criminal Case No. 2:10-CR-161 TS
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence, pursuant to 28 U.S.C. § 2255.1 Petitioner is proceeding pro se in this matter. Having
considered the pleadings and the record before it, the Court finds that all of Petitioner’s
arguments, and their underlying bases, do not establish appropriate grounds upon which to justify
relief under § 2255. Based upon the reasons set forth below, the Court will deny the Motion and
dismiss this case.
Case No. 2:11-CV-297 TS, Docket No. 1.
On March 3, 2010, Petitioner was named in a one-count Indictment charging him with
reentry of a previously removed alien in violation of 8 U.S.C. § 1326. Petitioner pleaded guilty
on May 3, 2010, and was sentenced to 21 months imprisonment on the same date.
On March 25, 2011, the Court received a letter from Petitioner asserting that his counsel
was ineffective. The Court has construed Petitioner’s letter as a § 2255 Motion. The Court
informed Petitioner of the risks associated with recharacterization and provided Petitioner an
opportunity to object to the recharacterization, withdraw the motion, or amend the Motion.2
Petitioner was later provided, upon his request, certain documents in preparation for the filing of
a § 2255 Motion.3 To date, Petitioner has not responded to the Court’s recharacterization order
and the time for doing so has passed. Therefore, the Court will consider the merits of
Petitioner brings a single claim in his § 2255 Motion. Petitioner alleges that he received
ineffective assistance of counsel based on the fact that his counsel informed him that his federal
sentence would run concurrently to his state sentence. This advice, apparently, turned out to be
The Tenth Circuit has held that “‘[w]hile the Sixth Amendment assures an accused of
effective assistance of counsel in ‘criminal prosecutions,’ this assurance does not extend to
Case No. 2:11-CV-297 TS, Docket No. 4.
Case No. 2:11-CV-297 TS, Docket No. 5.
collateral aspects of the prosecution.’”4 The Tenth Circuit has further held that “[t]he defendant
need not understand every collateral consequence of the plea, but need only understand its direct
consequences. Consequences of a guilty plea unrelated to the length and nature of the federal
sentence are not direct consequences.”5 The court further stated: “A consecutive sentence does
not affect the length or nature of the federal sentence, even though it increases the total length of
the defendant's incarceration. Thus, the consecutive nature of a sentence is not a direct
consequence about which the defendant must be advised.”6
In this matter, Petitioner alleges that he was misinformed as to whether his federal
sentence would be concurrent with or consecutive to his state sentence. As the consecutive
nature of a sentence is a collateral consequence, the Sixth Amendment is not implicated. Thus,
counsel’s allegedly faulty advice cannot rise to the level of ineffective assistance and his Motion
must be denied.
It is therefore
ORDERED that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence, pursuant
to 28 U.S.C. § 2255 (Docket No. 1 in Case No. 2:11-CV-297 TS) is DENIED.
The Clerk of the Court is directed to close Case No. 2:11-CV-297 TS forthwith.
Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992) (quoting United States v.
George, 869 F.2d 333, 337 (7th Cir. 1989)).
United States v. Hurlich, 293 F.3d 1223, 1230-31 (10th Cir. 2002).
Id. at 1231.
DATED September 27, 2011.
BY THE COURT:
United States District Judge