Gonzalez-Gonzalez v. USA

Filing 8

ORDER: The petitioner's Motion under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. The denial is without prejudice to the Petitioner filing, within 45 days, a motion for reconsideration, as to Ground One only, supported by an affidavit sufficient to create a genuine issue as to whether he is entitled to relief. Signed by Judge Alvin W. Thompson on 4/13/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
ROBERTO GONZALEZ-GONZALEZ,
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
------------------------------x

Civ. No. 3:14CV672(AWT)

RULING ON MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE
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.
four claims of ineffective assistance of counsel.

He makes

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 10, 2011.

November 12, 2009, July 7, 2011, and
Upon his removal on November 10, 2011, the

Petitioner was advised by the Department of Homeland Security
1

The Petitioner’s true name is Luciano Flores Jiminez.

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 reenter 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
2

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 lowend of the range, i.e. 57 months.

The government also agreed

that the Petitioner could challenge the application of the 16level 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
3

investigate the fact that the Petitioner has “mental
disabilities”.
II.

Petition (Doc. No. 1) at 8.

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, 48788 (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
4

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.”
694 (1984).

Strickland v. Washington, 466 U.S. 668, 688,

”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
5

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.”
694.

Strickland, 466 U.S. at

“‘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 Appeal (Ground One)
The Petitioner’s first claim is for “ineffective
assistance of counsel for failing to file for a direct
appeal.”

Petition at 5.

The Petition reads as follows:

6

I told my attorney that 54 months [of imprisonment]
were to [sic] much and that I wanted to appeal. But,
the attorney advise me to wait and that when one
years [sic] pass she will seek a reduction in my
sentence. Moreover, she never told me how to appeal,
or what an appeal was.
Id.
Although it appears that the signature on the
petition is the Petitioner’s, the entire petition appears
to have been hand-written by someone other than the
Petitioner.

See also Petition at 13 (“This guy has

mental disabilities.
Library”).

Was aided by an inmate at the

In addition, the Petitioner did not submit an

affidavit or declaration in support of his claims.
On the other hand, the Petitioner’s former counsel avers:
8. Contrary to Mr. Gonzalez-Gonzalez's assertion in his
habeas motion for ineffective assistance of counsel, I did
advise him of his right to appeal. Following the sentencing
hearing, I met with Mr. Gonzalez-Gonzalez in the Marshal’s
lockup
with
the
assistance
of
a
Spanish-speaking
interpreter and counseled him regarding his right to
appeal.
I advised him that in my best professional
judgment, I did not see any strong basis for an appeal in
his case, but that if he wanted me to file a notice of
appeal on his behalf I would do so. I also told him that
any such notice of appeal must be filed within 14 days. He
did not ever request that I appeal his sentence or
conviction.
He indicated that he understood, and he
further indicated that he accepted the result. He thanked
me for my efforts. He never, ever requested that I appeal
his sentence or conviction.
9. In addition, after his federal sentencing, I continued
to work on his behalf by contacting his state criminal
defense attorney to assist her to get his state charges
dropped in light of the federal resolution. With my help,
she was ultimately successful.
If the state charges had
7

not been dropped, Mr. Gonzalez-Gonzalez would have been
facing a consecutive sentence, and none of the time he had
spent incarcerated to date would have counted toward his
federal sentence.
Affidavit of Assistant Federal Public Defender Kelly M.
Barrett (Doc. No. 7-1) (“Affidavit”) ¶¶8-9.
Thus, the affidavit of the Petitioner’s former counsel not
only contradicts each of the statements in the Petition, painting
a very different picture of the meeting in the lockup, but also
reflects that counsel continued to work on the Petitioner’s
behalf after the sentencing and assisted in obtaining a very
beneficial outcome for him in state court.

The Petitioner never

filed any response of any kind to this affidavit.
Moreover, after imposing sentence, the court reviewed with
the Petitioner his right to appeal, including the deadline for
filing a notice of appeal, and the Petitioner stated that he
understood.

A Spanish-speaking interpreter assisted in

simultaneously translating the proceedings for the Petitioner.
However, there is no indication that the Petitioner ever took
any steps to attempt to file an appeal after his counsel
supposedly neglected to do so.
Also, there is no indication that the Petitioner ever
attempted to follow up with his counsel with respect to supposed
advice that a sentence reduction could be pursued after a year
had passed.

8

In light of the foregoing, particularly the fact that
counsel continued to work on the Petitioner’s case after the
federal sentencing and that the Petitioner never responded to
the affidavit of his former counsel, this case is not one where
an evidentiary hearing is necessary or appropriate; on this
record the court has no reasonable assurance that the Petitioner
stands behind the assertions in the petition.

On the current

record, the performance of the Petitioner’s counsel did not fall
below an objective standard of reasonableness and the motion is
being denied as to this claim.

However, had the Petitioner filed

an affidavit contesting that filed by his former counsel, the
court would have held an evidentiary hearing.

Because failure to

file an appeal is a circumstance where a petitioner need not
demonstrate prejudice, see McHale v. United States, 175 F.3d 115,
119 (2d Cir. 1999)(“In light of Rodriquez and Penson, however,
it is clear that the petitioner need not demonstrate that, but
for the ineffectiveness of counsel, such an appeal would have
succeeded or even would have had merit.”), the denial as to this
claim is without prejudice to the Petitioner filing, within 45
days, a motion for reconsideration, as to this claim only,
supported by an

affidavit sufficient to create a genuine issue

as to whether he is entitled to relief.

9

B. The 16-Level Enhancement (Ground Two)
The Petitioner’s second claim is for “ineffective
assistance of counsel for failing to argue[] against the 16
point[] enhancement.”

Petition at 6.

The Petition reads as

follows: “I told my attorney that the felony was over 15 years
old, so that the 16 points enhancement was inapplicable because
it did not receive criminal history points.”

Id.

The government advocated for a 16-level increase pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on the Petitioner’s
February 11, 2000 narcotics conviction in state court in
Georgia.

In the Plea Agreement, the Petitioner reserved the

right to appeal the application of that enhancement at
sentencing.
U.S.S.G. § 2L1.2(b)(1)(A)(i) provides, in pertinent part:
If
the
defendant
previously
was
deported,
or
unlawfully remained in the United States, after -- a
conviction for a felony that
is (i) a drug
trafficking offense for which the sentence imposed
exceeded 13 months . . . increase by 16 levels if the
conviction receives criminal history points under
Chapter Four.
U.S.S.G. § 2L1.2(b)(1)(A)(i).
The conviction at issue was sustained on February 11,
2000.

It was for a state drug trafficking offense, and the

sentence imposed exceeded 13 months.

In addition, paragraph 34

of the Presentence Report reflects that the Petitioner received
three criminal history points on account of this conviction,
10

pursuant to U.S.S.G. § 4A1.1 (a).

Each of the three occasions

on which the Petitioner was deported was after he sustained the
conviction in February 2000.

Thus, the government was correct

in arguing that the 16-point enhancement was appropriate.
Defense counsel conceded that the 16-level enhancement was
correct and, instead, argued, inter alia, for a downward
departure pursuant to Application Note 7 of U.S.S.G. § 2L1.2.
The Petitioner’s counsel raised several additional
arguments in support of a sentence below the advisory range
under the Sentencing Guidelines:

first, that proper

application of the parsimony clause in § 3553(a) required such
a sentence; second, that the illegal re-entry Guidelines “are
excessively severe and wrongly promote disparate and
disproportionate sentences”, and “[t]he excessive nature of
this Guidelines range becomes starkly apparent when comparing
it to historical and average sentences in immigration offenses,
as well to average sentences imposed for all federal criminal
offenses nationwide”, Memorandum in Aid of Sentencing (“Def’s
Memo”), Crim. Case No. 3:13CR89(AWT), Doc. No. 30 at 6; third,
that the Guidelines calculation involved “double-counting”
because the same felony conviction counted for both the 16level enhancement and for three criminal history points under
§ 4A1.1; and fourth, that the enhancement lacked a solid policy
rationale, citing cases and criminal justice professionals
11

calling for an amendment to § 2L1.2(b)(1)(A) to avoid
disproportionately severe sentences for defendants like the
Petitioner.
The performance of the Petitioner’s counsel did not fall
below an objective standard of reasonableness.

Defense

counsel’s decision to raise these other arguments at sentencing
instead of contesting whether the requirements for the 16-level
enhancement had been satisfied was a sound one, particularly in
light of the evidence supporting the applicability of the
enhancement.

However, in any event, “[t]he 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).
C. The Petitioner’s Criminal History (Ground Three)
The Petitioner’s third claim is for “[i]neffective
assistance of counsel for failing to argue[] against the
overstated criminal history.”

Petition at 8.

The Petition

reads as follows: “My criminal history was clearly overstated
and thus, my attorney failed to argue[] against the criminal
history.”

Id.
12

However, in her memorandum in aid of sentencing, defense
counsel noted that although the Petitioner has a lengthy
criminal history, he “has no other drug-related convictions or
violent convictions,” and that his history “is comprised almost
entirely by shoplifting offenses and entirely by non-violent
offenses.”

Def’s Memo. at 9, 12.

Defense counsel argued

further that “[a]lthough Mr. Gonzalez-Gonzalez has been
imprisoned before, the longest period of time he [has] actually
served in jail was 18 months. Collectively, including all of
his prior convictions spread out over the last 20 years, he has
served about 34 months in prison.”

Def’s Memo. at 16.

Thus,

the Petitioner’s counsel did, in fact, argue that his criminal
history was overstated.
Thus, the performance of the Petitioner’s counsel did not
fall below an objective standard of reasonableness.
D. The Petitioner’s Mental Health (Ground Four)
The Petitioner’s fourth claim is for “ineffective
assistance of counsel for failing to argue and investigate that
I have mental disabilities”.

Petition at 9.

The Petition reads

as follows: “My attorney was well aware[] of my mental
incapacitation, and thus, she knew of my incompetence.
Therefore, I clearly have mental illness, and thus, I don’t
know the nature of the proceedings.
have been mitigated.”

Id.
13

So, my sentence should

The Petitioner presented no signs of mental illness or
incompetence throughout the proceedings against him.

The

Presentence Report reflects that during his interview with the
probation officer, the Petitioner mentioned “a history of
symptoms including anxiety, nightmares, difficulty sleeping and
suicidal thoughts” but that at a later mental health screening
the Petitioner was “alert, oriented and in anxious mood with no
reported history of self-injurious behavior or current suicidal
ideation.”

Presentence Report ¶68.

recommended at that time.

No further intervention was

The Presentence Report also reflected

that the petitioner advised that he had never been diagnosed
with a mental health disorder, nor received treatment for any
mental health condition while in the community.
The petition states that the Petitioner did not understand
the nature of the proceedings.

However, during his change of

plea hearing the Petitioner repeatedly stated that he understood
the proceedings and the court’s questions and statements.

At

the time he entered his guilty plea and signed the Plea
Agreement, he acknowledged that he fully understand all of the
terms and conditions set forth in that agreement.

At that

proceeding the court confirmed with the Petitioner that he had
not recently been under the treatment of a mental health
provider, and the Petitioner informed the court that his health

14

was fine, that his mind was clear and that he understood
everything that was happening at that proceeding.
In addition, to the extent that the Petitioner suggests
that his defense counsel failed to highlight, for sentencing
purposes, any mental health issues he may have, such a
contention is not correct.

In her memorandum in aid of

sentencing, defense counsel argued that the Petitioner’s mental
health issues, in combination with other factors, weighed in
favor of a sentence below the advisory Guidelines range.

The

memorandum argues that “Mr. Gonzalez-Gonzalez sniffed glue for
four years during what we now know to be a crucial stage of the
brain’s development” (Deft’s Memo at 11) and that “although he
has never been formally diagnosed with a mental health disorder,
Mr. Gonzalez-Gonzalez suffers from anxiety and depression.”
Deft’s Memo at 12.
Thus, the performance of the Petitioner’s counsel did not
fall below an objective standard of reasonableness.
IV.

CONCLUSION

For the reasons set forth above, the court concludes that
each of the Petitioner’s four claims for ineffective assistance
of counsel lacks merit, and the motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1) is
hereby DENIED but without prejudice to the Petitioner filing,
within 45 days, a motion for reconsideration, as to Ground One
15

only, supported by an affidavit sufficient to create a genuine
issue as to whether he is entitled to relief.

The court will not

issue a certificate of appealability because the Petitioner has
not made a substantial showing of the denial of a constitutional
right.

See 28 U.S.C. § 2253(c)(2).

The Clerk shall enter judgment and close this case.
It is so ordered.
Dated this 13th day of April, 2017, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

16