Gonzalez-Olvera v. United States of America

Filing 10

ORDER & OPINION entered by Judge Joe Billy McDade on 5/16/2018. IT IS ORDERED THAT: all of Petitioner's claims in his § 2255 Motion are DENIED except for his claim that his trial counsel provided ineffective assistance for failing to file a requested notice of appeal. The Court will appoint a CJA panel attorney to represent Gonzalez-Olvera at an evidentiary hearing on his remaining ineffective assistance of counsel claim. The Court will set a date for the evidentiaryhearing after counsel for the Government and Petitioner's appointed counsel have had an opportunity to confer. SEE FULL WRITTEN ORDER.(SAG, ilcd)

E-FILED

Wednesday, 16 May, 2018 04:39:43 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

JESUS VENTURA GONZALEZOLVERA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 17-cv-1587

ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255 (Doc. 1). For the reasons stated below, all of
Petitioner’s claims are DENIED except for his claim that his trial counsel provided
ineffective assistance for failing to file a requested notice of appeal. The Court will
hold an evidentiary hearing on Petitioner’s remaining ineffective assistance of
counsel claim.
BACKGROUND
Petitioner is currently incarcerated at McRae Correctional Institution in
McRae, Georgia. On October 11, 2016, Petitioner, an alien, pleaded guilty before
Magistrate Judge Jonathan E. Hawley to illegal reentry into the United States after
deportation, in violation of 8 U.S.C. §§ 1326(a) and (b). United States v. GonzalezOlvera, 16-cr-10041 (C.D. Ill. 2017) (Doc. 9). On January 18, 2017, this Court adopted
Judge Hawley’s Report and Recommendation and accepted Petitioner’s guilty plea.
Id. (Doc. 14). On January 25, 2017, Petitioner was sentenced to 37 months

imprisonment and three years of supervised release. Id. (Doc. 17). Petitioner did not
appeal his conviction or sentence, but instead brought this § 2255 collateral attack on
December 29, 2017.
Petitioner argues that his trial counsel provided ineffective assistance by
failing to file a notice of appeal, and for advising Petitioner that he would be able to
stay in the United States when he finished serving his sentence. (Doc. 1 at 4, 6). He
also contends that the district court denied him “due process to a final hearing and
plea, and failed to consider” him “for supervise[d] release with his family”. Id. He
further alleges that his Fourteenth Amendment rights were violated by the Board of
Immigration. Id. Lastly, Gonzalez-Olvera complains that his prison “legal assistant”
has been retaliated against (though Petitioner does not say by who) by denying him
access to the law library and making him pay for forms that “others get for free.” Id.
at 9. Petitioner requests the Court to order the Attorney General to consider him for
asylum pursuant to 8 U.S.C. § 1253, allow supervised release when Petitioner’s
federal sentence expires, and grant him a bond hearing.
On March 12, 2018, the Government filed a motion for extension of time to file
a response and for an order directing Petitioner’s trial counsel, Robert Alvarado, to
submit an affidavit in response to Petitioner’s Ineffective Assistance of Counsel
claims. (Doc. 6). The Court granted the motion. On April 10, 2018, the Government
filed a response and an affidavit from attorney Alvarado addressing Petitioner’s
ineffective assistance of counsel claims. This matter is now ripe for decision.
LEGAL STANDARDS
Section 2255 of Title 28 of the United States Code provides that a sentence
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may be vacated, set aside, or corrected “upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral attack.”
“Relief under § 2255 is an extraordinary remedy because it asks the district court
essentially to reopen the criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.
2007). Thus, § 2255 relief is limited to correcting errors of constitutional or
jurisdictional magnitude or errors constituting fundamental defects that result in
complete miscarriages of justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112 (7th
Cir. 1994), overruled on other grounds by United States v. Ceballos, 26 F.3d 717 (7th
Cir. 1994).
“A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United
States, 318 F.3d 754, 760 (7th Cir. 2003) (citing Doe v. United States, 51 F.3d 693, 698
(7th Cir. 1995)). Claims other than ineffective assistance of counsel cannot be raised
for the first time in a § 2255 motion if they could have been raised on direct appeal.
McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). “A federal prisoner cannot
bring defaulted claims on collateral attack unless he shows both cause and prejudice
for the default.” Id. (citing Hale v. United States, 710 F.3d 711, 713 (7th Cir. 2013);
Gant v. United States, 627 F.3d 677, 683 (7th Cir. 2010)). “Absent a showing of both
cause and prejudice, procedural default will only be excused if the prisoner can
demonstrate that he is ‘actually innocent’ of the crimes of which he was convicted.”
Id. (citing Torzala v. United States, 545 F.3d 517, 522 (7th Cir.2008)).
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DISCUSSION
The Court initially observes that Gonzalez-Olvera failed to file an appeal in
this case, even though he was advised of his right to do so at sentencing on January
25, 2017. See January 25, 2017, Minute Entry. Gonzalez-Olvera did not waive his
right to file an appeal by pleading guilty. Claims other than ineffective assistance of
counsel cannot be raised for the first time in a § 2255 motion if they could have been
raised on direct appeal. McCoy, 815 F.3d at 295 (7th Cir. 2016). Petitioner’s due
process, retaliation, and Board of Immigration claims could have been raised on direct
appeal. As such, those claims are procedurally defaulted and cannot be raised for the
first time now. However, because Petitioner claims that his attorney failed to file a
notice of appeal despite being requested to do so, the Court will address these claims.
As will be described in more detail below, these claims are meritless and/or not
cognizable in a § 2255 proceeding.
Furthermore, Petitioner has properly brought ineffective assistance of counsel
claims in this § 2255 Motion. As will be discussed below, one of Petitioner’s claims
entitles him to an evidentiary hearing while the remainder of his claims are without
merit under the standard set forth in Strickland v. Washington, 466 U.S. 668, 694
(1984).
I.

CLAIMS OTHER THAN INEFFECTIVE ASSISTANCE OF COUNSEL

Gonzalez-Olvera argues that the district court denied him “due process to a
final hearing and plea, and failed to consider” him “for supervise[d] release with his
family”. He further alleges that his Fourteenth Amendment rights were violated by
the Board of Immigration, and that his prison “legal assistant” has been retaliated
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against by denying him access to the law library and making him pay for forms that
“others get for free.” Petitioner requests the Court to order the Attorney General to
consider him for asylum pursuant to 8 U.S.C. § 1253, allow supervised release when
Petitioner’s federal sentence expires, and grant him a bond hearing.
Relief under this § 2255 “is available only in extraordinary situations, such as
an error of constitutional or jurisdictional magnitude or where a fundamental defect
has occurred which results in a complete miscarriage of justice.” Blake v. United
States, 723 F.3d 870, 878–79 (7th Cir. 2013). Gonzalez-Olvera does not explain how
the Board of Immigration has violated his Fourteenth Amendment rights, or how the
Board “refuses” to help.
In any event, to the extent Gonzalez-Olvera is attempting to challenge a
deportation decision made by the Board of Immigration (“BOI”), that claim is not
cognizable in a § 2255 petition. This Court does not have jurisdiction “to hear any
cause or claim by or on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal
orders against any alien”. 8 U.S.C. § 1252(g); Chowdhury v. Ashcroft, 241 F.3d 848,
850 (7th Cir. 2001) (holding that § 1252 prohibits consideration under habeas corpus
of claims that arose from actions of the Attorney General and BOI). A petition for
asylum is filed with the United States Citizenship and Immigration Services, and the
petition thereafter may be considered by an Immigration Judge, not a federal district
court judge. Where the Board of Immigration Appeals affirms an Immigration Judge’s
opinion denying asylum, only then, under limited circumstances, may a federal
Circuit Court of Appeals be petitioned for review of that decision. “A criminal trial for
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the felony of illegal reentry after deportation . . . is not the proper forum to argue a
case for political asylum.” United States v. Polanco-Gomez, 841 F.2d 235, 238 (8th
Cir. 1988). Put simply, what may have happened before the Board of Immigration
has no bearing on the constitutionality of Gonzalez-Olvera’s underlying conviction
and sentence for illegal re-entry. Petitioner’s claims related to his Board of
Immigration proceedings are not cognizable in a § 2255 Motion. See United States v.
Iribe-Beltran, No. 05-36-S-BLW, 2009 WL 1891555, at *8 (D. Idaho July 1, 2009)
(§2255 motion inappropriate vehicle to request asylum).
Petitioner’s retaliation claim likewise has no bearing on the validity of his
underlying conviction or sentence. The retaliation claim relates to conduct entirely
separate and distinct from his underlying conviction. If Petitioner wishes to make a
First Amendment claim based on denial of access to the law library since his
conviction, the proper avenue to do so would be in a lawsuit filed under 42 U.S.C. §
1983.
Petitioner further contends that the district court denied him due process to a
final hearing on his plea, and failed to consider him for supervised release with his
family. Rule 11 of the Federal Rules of Criminal Procedure requires a trial court to
“address the defendant personally in open court” before accepting his guilty plea. FED.
R. CRIM. P. 11(b). During this colloquy, the court must convey specific information
about his rights and the consequences of his plea, and it must satisfy itself that he
understands those rights. FED. R. CRIM. P. 11(b)(1). The Court also must ensure that
the plea is voluntary, FED. R. CRIM. P. 11(b)(2), and that it is supported by a factual
basis, FED. R. CRIM. P. 11(b)(3).
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Magistrate Judge Hawley addressed Gonzalez-Olvera in open court on October
11, 2016, before accepting his guilty plea. Judge Hawley then filed a Report and
Recommendation Concerning Plea of Guilty, which stated, in part:
After cautioning and examining the Defendant under oath concerning
each of the subjects mentioned in Rule 11, I determined that the guilty
plea was knowing and voluntary as to Count 1, and that the offense
charged is supported by an independent factual basis containing each of
the essential element(s) of such offense. I therefore recommend that the
plea of guilty be accepted, that a pre-sentence investigation and report
be prepared, and the Defendant be adjudged guilty and have sentence
imposed accordingly.
Id. (Doc. 9). Gonzalez-Olvera did not file any objections to the Report and
Recommendation. On January 19, 2017, the district court accepted Defendant’s plea
of guilty, advised him of his appeal rights, and sentenced him to 37 months
incarceration. Id. (Doc. 14).
Contrary to his assertion, Gonzalez-Olvera was not denied a hearing on his
guilty plea. It was permissible for Judge Hawley, instead of Judge McDade, to conduct
the Rule 11(b) colloquy in open court. See United States v. Harden, 758 F.3d 886, 891
(7th Cir. 2014) (“There is widespread agreement that a magistrate judge may conduct
a Rule 11(b) colloquy for the purpose of making a report and recommendation.”).
Gonzalez-Olvera does not argue that his plea was unknowing or involuntary, and the
record clearly supports a finding that Gonzalez-Olvera entered into his plea
knowingly and voluntarily. In sum, Petitioner’s guilty plea comported with due
process and this claim is meritless.
Petitioner also complains that the Court failed to consider him for supervised
release instead of incarceration. But Gonzalez-Olvera fails to explain how the Court
erred in sentencing him to incarceration instead of supervised release. However, the
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Court did not commit error in sentencing Petitioner to 37 months’ imprisonment.
Based on his total offense level (17) and his criminal history category (III), the
Sentencing Guideline provisions were 30 months to 37 months imprisonment. Where
a district court sentences a defendant to a within-guideline range sentence, there is
a presumption of reasonableness. United States v. Castro-Alvarado, 755 F.3d 472,
477 (7th Cir. 2014). Petitioner had been deported several times in the past; Petitioner
was convicted of illegal re-entry after deportation before this Court in 2009. GonzalezOlvera has a lengthy and violent criminal history, and he used several aliases and
false social security numbers to avoid detection. The Court cannot, and does not,
perceive any reason why Gonzalez-Olvera’s within-range sentence was unreasonable.
Petitioner simply believes he should have been given a lesser sentence of supervised
release. This argument has no constitutional import and therefore has no merit.
II.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Petitioner argues that his trial counsel provided ineffective assistance by
failing to file a requested notice of appeal, and for telling Petitioner that he would be
able to stay in the United States when his sentence expired. (Doc. 1 at 4, 6). He also
avers that his counsel was deficient for failing to raise the issue of asylum and for
failing to argue that Petitioner was in fact an American citizen. Id. at 8.
Ineffective assistance of counsel requires a petitioner to show (1) “that
counsel’s representation fell below an objective standard of reasonableness,” and (2)
“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. “In
the context of pleas a defendant must show the outcome of the plea process would
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have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163
(2012). In order to satisfy the second, or “prejudice,” requirement, “the defendant
must show that there is a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
Petitioner first argues that he “was denied appeal when I ask counsel to do so
because Counsel never requested asylum knowing if I go back to Mexico I’ll be killed.”
(Doc. 1 at 4). “[A] lawyer who disregards specific instructions from the defendant to
file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v.
Flores–Ortega, 528 U.S. 470, 476–77 (2000). In other words, “[w]hen a defendant asks
his attorney to pursue a direct appeal and the attorney does not do so, it is per se
ineffective assistance of counsel,” without regard to the probability of success on
appeal. Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010); Peguero v. United
States, 526 U.S. 23, 28 (1999) (“When counsel fails to file a requested appeal, a
defendant is entitled to . . . an appeal without showing that his appeal would likely
have merit.”); Castellanos v. United States, 26 F.3d 717 (7th Cir.1994). The only
exception is when a defendant agrees in a plea agreement to waive his right to appeal,
see Solano v. United States, 812 F.3d 573, 575 (7th Cir. 2016); Nunez v. United States,
546 F.3d 450, 456 (7th Cir. 2008), but Petitioner did not waive his right to appeal in
this case.
Petitioner’s trial counsel filed an affidavit with the Court in which he testifies
that Petitioner did not request him to file an appeal. (Doc. 9-3). As it stands, then, it
is Petitioner’s word versus his attorney’s word. In cases with similar facts, the
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Seventh Circuit has held that an evidentiary hearing is required to resolve this claim.
See Heiss v. United States, 24 F.App’x 599, 600-01 (7th Cir. 2001) (district court
committed reversible error when it dismissed a similar claim in a § 2255 Motion
without holding an evidentiary hearing)1; Bradley v. United States, 219 F. App'x 587,
589 (7th Cir. 2007) (district court abused its discretion by refusing to hold an
evidentiary hearing on claim that counsel failed to file requested notice of appeal);
Dowell v. United States, 694 F.3d 898, 903-04 (7th Cir. 2012) (remanding to district
court to determine factual question of whether defendant asked his counsel to file a
notice of appeal); see also Blake v. United States, 814 F.3d 851, 852-53 (7th Cir. 2016)
(affirming district court’s finding that Mr. Blake did not ask his attorney to file an
appeal after it held an evidentiary hearing on the claim). In reviewing a § 2255
Motion, a district court can only deny an evidentiary hearing if “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. The record does not conclusively show that Petitioner is not
entitled to relief. See Ryan, 657 F.3d at 606 (reversing district court where it
dismissed, without “development of the record,” defendant’s claim that his attorney

The Court recognizes that the facts of this case are slightly distinguishable from those in
Heiss. Heiss specifically claimed that he told his attorney to file a notice of appeal on the date of his
sentencing, which means, if true, Heiss timely requested an appeal. Gonzalez-Olvera does not specify
when he told his trial counsel to file a notice of appeal. Furthermore, the Seventh Circuit in Heiss
explained that the district court improperly “credited counsel’s version over Heiss’s where it never told
Heiss that he needed to submit a response to counsel’s affidavit or that he was required to reduce the
allegations of his § 2255 motion to affidavit form.” Id. This Court, by contrast, instructed GonzalezOlvera to “file an affidavit with the Court testifying to the circumstances surrounding this particular
claim,” and to “explain in his affidavit when he told his attorney to file an appeal.” See April 17, 2018
Text Order. Petitioner failed to respond or file an affidavit.
However, the Court still finds that a hearing is necessary to resolve this claim. Case law is
crystal clear that “[w]hen a defendant in a criminal case specifically instructs a lawyer to file a notice
of appeal, the lawyer's failure to do so deprives the defendant of the Sixth Amendment right to counsel,
regardless of whether an appeal was likely to succeed.” Ryan v. United States, 657 F.3d 604, 606 (7th
Cir. 2011).
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failed to file requested notice of appeal because the defendant did not “conclusively
plead[] himself out of court.”).
Petitioner further claims that his attorney erroneously told him he would be
able to stay in the United States after he served his sentence, but that Petitioner has
since learned that the federal government has an immigration detainer on him. The
Sixth Amendment requires counsel to inform clients if a guilty plea carries the risk
of deportation. Padilla v. Kentucky, 559 U.S. 356, 374 (2010). The Court not only finds
Petitioner’s claim incredible, but finds that Petitioner had full knowledge that he
would face deportation.
First, Petitioner has been deported for this exact crime before. United States v.
Gonzalez-Olvera, 09-cr-10059 (C.D. Ill. 2009). It is palpably absurd that GonzalezOlvera would believe he could stay in the United States after he had already been
deported once for unlawful re-entry after deportation. It is even more incredible that
Gonzalez-Olvera claims that his attorney, the same attorney who represented
Petitioner when he was convicted of illegal re-entry in 2009, told him he could stay in
the United States once his sentenced expired. Trial counsel knew Gonzalez-Olvera
was deported for this crime once before; surely he would not tell Petitioner that the
outcome would be different this time around. 2
Second, the Court explained to Petitioner at his change of plea hearing and
sentencing hearing that he could be deported: “Mr. Gonzalez, you understand that
the plea you’re entering today could have significant immigration consequences up to

2 An evidentiary hearing is not required for claims that are “vague, conclusory, or palpably
incredible”. Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir.2006).

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and including deportation from the United States after you would serve any sentence
in this case?” Petitioner responded “Yes.” (Doc. 9-1 at 14:10-15). Trial counsel stated
on the record, with Petitioner present, that Petitioner “can never get legal status
here.” (Doc. 9-2 at 8:8). The Court told Petitioner that it had “a strong suspicion that
you will come back to this country once you’re deported.” Id. at 10:9-11. The Court
also recommended, on the record, “that you [(Petitioner)] be deported during the
service of your term of imprisonment.” Id. at 11:20-22. The Court repeatedly told
Petitioner that he could not re-enter the country illegally once his sentence was
served and he was on supervised release. In sum, all of the evidence in the record
shows that not only was Gonzalez-Olvera certainly aware that he would be deported,
but that his trial counsel did not advise him that he would be able to remain in the
United States after he finished his sentence.
Lastly, the Court summarily dismisses Gonzalez-Olvera’s claim that his
counsel was deficient for failing to argue that Petitioner was an American citizen
because he was law-abiding and lived with his family. It is beyond dispute that
American citizenship is not obtained merely by living with your family and following
the law. Plus, Gonzalez-Olvera was not law-abiding; he was living here illegally. As
previously stated supra, asylum is a claim made in immigration proceedings before
the Board of Immigration. It is not a defense to a criminal charge of illegal re-entry.
In fact, individuals subject to a reinstated removal order, like Petitioner, are
ineligible to seek asylum at all. See Mejia v. Sessions, 866 F.3d 573, 583 (4th Cir.
2017); Garcia Garcia v. Sessions, 856 F.3d 27, 31 (1st Cir. 2017); Cazun v. Att'y Gen.
U.S., 856 F.3d 249, 251 (3d Cir. 2017); Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d
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1307, 1310 (11th Cir. 2016); Perez-Guzman v. Lynch, 835 F.3d 1066, 1070 (9th Cir.
2016); Ramirez-Mejia v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015), pet'n for reh'g en
banc denied, 813 F.3d 240 (5th Cir. 2016); Herrera-Molina v. Holder, 597 F.3d 128,
139 (2d Cir. 2010). Thus, this claim has no merit.
CONCLUSION
For the reasons stated above, all of Petitioner’s claims in his § 2255 Motion are
DENIED except for his claim that his trial counsel provided ineffective assistance for
failing to file a requested notice of appeal. The Court will appoint a CJA panel
attorney to represent Gonzalez-Olvera at an evidentiary hearing on his remaining
ineffective assistance of counsel claim. The Court will set a date for the evidentiary
hearing after counsel for the Government and Petitioner’s appointed counsel have
had an opportunity to confer.

Entered this 16th day of May, 2018.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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