Hernandez-Barajas v. United States of America

Filing 6

ORDER AND OPINION entered by Judge James E. Shadid on 6/24/2019. For the reasons stated, Petitioner Luis Alberto Hernandez-Barajas' Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1) is DENIED. The Court declines to issue a certificate of appealability. This case is CLOSED. See full written Order.(VH, ilcd)

E-FILED

Monday, 24 June, 2019 03:06:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LUIS ALBERTO
HERNANDEZ-BARAJAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 18-cv-4087-JES

ORDER AND OPINION
This cause is before the Court on Petitioner Luis Alberto Hernandez-Barajas’ Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1).1 A hearing on the
Motion is not required because “the motion, files, and records of the case conclusively show that
the prisoner is entitled to no relief.” Hutchings v. United States, 618 F.3d 693, 699–700 (7th Cir.
2010) (quotation omitted). Because Petitioner is not entitled to relief, the § 2255 motion is
DENIED.
I. BACKGROUND
In February 2016, Hernandez-Barajas was charged in a Superseding Indictment with
Conspiracy to Distribute and Possession with Intent to Distribute Methamphetamine and
Marijuana, in violation of 21 U.S.C. § 846 (Count 1); and Possession with Intent to Distribute
Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). R. 8.
On February 15, 2017, Hernandez-Barajas entered a guilty plea to Count 2 of the
Superseding Indictment without a plea agreement. See R. Feb. 15, 2017 Minute Entry. At the

1

Citations to documents filed in this case are styled as “Doc. ___.” Citations to the record in the underlying
criminal case, United States v. Hernandez-Barajas, No. 15-cr-40081 (C.D. Ill.), are styled as “R.___.”

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change of plea hearing, Hernandez-Barajas and an interpreter for Hernandez-Barajas were sworn
in. Plea Tr., R. 22. While an interpreter was used at the hearing, Hernandez-Barajas testified
that he was able to “speak, read and write and understand English” “about 90 percent,” and that
he had no difficulty communicating with his counsel about the case. Id. at 5. The Magistrate
Judge found that Hernandez-Barajas was competent to understand the proceedings and to enter
into a knowing plea. Id. at 6. Hernandez-Barajas stated that he was not fully satisfied with his
counsel’s representation and advice, but he discussed his decision to enter a plea of guilty with
counsel and was satisfied with counsel’s representation regarding his desire to enter a plea. Id. at
6-7. The Government read the essential elements of the offenses and the maximum and
minimum potential penalties involved. Id. at 7-11. The Magistrate Judge explained the
constitutional rights that Hernandez-Barajas would be waiving by pleading guilty. Id. at 11-15.
Defense counsel advised the Court that the Government had proposed a plea agreement
whereby Hernandez-Barajas would plead guilty to Count 2 and the Government would dismiss
Count 1. Plea Tr., R. 22 at 15. Defense counsel explained that Hernandez-Barajas was
unwilling to enter the plea agreement because he did not want to give up his appeal rights. Id.
Hernandez-Barajas then acknowledged that he did not wish to enter into the plea agreement and
had discussed this with his attorney. Id. The Court explained that there were potential
immigration consequences resulting from his conviction, and Hernandez-Barajas said he that he
was “aware of that.” Id. at 16-17.
Hernandez-Barajas also acknowledged that he understood that under some circumstances
he would have the right to appeal any sentence this Court imposed. Plea Tr., R. 22 at 19. The
Government recited the evidence it would present if the matter were to proceed to trial, and
Hernandez-Barajas agreed “in sum” to the Government’s evidence. Id. at 19-23. After some

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discussion regarding the specifics of the two counts charged, this Court found it could not accept
a guilty plea to Count 1, but would consider Hernandez-Barajas’s guilty plea to Count 2 if
Hernandez-Barajas wanted to proceed with a plea on that count. Id. at 23-25. HernandezBarajas reiterated that he did want to go forward with a guilty plea as to Count 2 only, and after
reviewing the factual basis and questioning Hernandez-Barajas about what he did, the Magistrate
Judge accepted Hernandez-Barajas’s plea to Count 2. Id. at 26-28. The Magistrate Judge then
filed his report and recommendation to the district judge. R.14. Count 1 remained set for trial
pending sentencing on Count 2. This Court accepted his guilty plea on March 7, 2017. R.16.
A presentence investigation report (“PSR”) was prepared by the United States Probation
Office. PSR, R. 19. The PSR stated there was a statutory minimum term of 120 months’
imprisonment and a maximum of life. Id. at ¶ 82. The PSR calculated the total offense level as
31 and a criminal history category of III, resulting in a sentencing guidelines imprisonment range
of 135 months’ to 168 months’ imprisonment. Id. at ¶ 83.
The sentencing hearing was held on December 7, 2017. R. Dec. 7, 2017 Minute Entry.
The Government moved to dismiss Count 1 of the Superseding Indictment. Id. HernandezBarajas’ counsel made objections to the PSR, which were either denied by the Court or
withdrawn. Id. The Court sentenced Hernandez-Barajas to the mandatory minimum sentence of
120 months’ imprisonment, five years of supervised release, and a $100 special assessment. Id.
The written judgment was entered on December 11, 2017. R. 26. No direct appeal was filed.
Hernandez-Barajas filed this timely Motion to Vacate, Set Aside, or Correct Sentence
Under 28 U.S.C. § 2255 (Doc. 1) on May 4, 2018, alleging his Sixth Amendment rights were
violated because he received ineffective assistance of counsel. Specifically, Hernandez-Barajas
alleges: (1) his counsel was ineffective because he pushed him to sign a guilty plea and never

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discussed the impact of his guilty plea on his appeal rights; (2) his counsel was ineffective for
telling him that if he qualified for the safety valve he could get a sentence lower than 120
months’ imprisonment; (3) his counsel was ineffective for making him “go through the motions”
and have an interview with agents when he was ineligible for the safety valve; and (4) his
language barrier and lack of knowledge of the laws hindered his ability to fully understand the
proceedings.
The Government filed its Response (Doc. 4). Hernandez-Barajas did not file a timely
Reply. This Order follows.
II. LEGAL STANDARD
A person convicted of a federal crime may move to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. Relief under § 2555 is an extraordinary remedy because
a § 2255 petitioner has already had “an opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). A petitioner may avail himself of § 2255 relief only if
he can show that there are “flaws in the conviction or sentence which are jurisdictional in nature,
constitutional in magnitude or result in a complete miscarriage of justice.” Boyer v. United
States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S. Ct. 268 (1995). Section 2255 is
limited to correcting errors that “vitiate the sentencing court’s jurisdiction or are otherwise of
constitutional magnitude.” Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993) (citing Scott
v. United States, 997 F.2d 340 (7th Cir. 1993)).
A § 2255 motion is not a substitute for a direct appeal. Doe v. United States, 51 F.3d
693, 698 (7th Cir. 1995), cert. denied, 116 S. Ct. 205 (1995); McCleese v. United States, 75 F.3d
1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent
decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152,

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165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred
from raising: (1) issues raised on direct appeal, absent some showing of new evidence or
changed circumstances; (2) non-constitutional issues that could have been but were not raised on
direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing
of cause for the default and actual prejudice from the failure to appeal. Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States,
26 F.3d 717, 710-20 (7th Cir. 1994). “[I]t is generally proper to raise arguments of ineffective
assistance of counsel for the first time on collateral review in a § 2255 petition because such
claims usually. . . involve evidence outside the record.” Galbraith v. United States, 313 F.3d
1001, 1007 (7th Cir. 2002).
The Sixth Amendment guarantees criminal defendants effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 684-86 (1984). Under Strickland’s familiar two-part
test, Petitioner must show both that his attorney’s performance was deficient and that he was
prejudiced as a result. Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). Courts,
however, must “indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 690. A prisoner must also prove
that he has been prejudiced by his counsel's representation by showing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Absent a sufficient showing of both cause and prejudice, a petitioner’s
claim must fail. United States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991).
In the plea-bargaining phase, “reasonably competent counsel will ‘attempt to learn all of
the facts of the case, make an estimate of a likely sentence, and communicate the results of that
analysis before allowing his client to plead guilty.’” Gaylord v. United States, 829 F.3d 500, 506

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(7th Cir. 2016) (citing Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003)). Mistakes, nor
omissions, in an attorney’s advice do not necessarily constitute ineffective assistance of counsel.
Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002). “[I]n order to satisfy the
‘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, 106 S.Ct. 366 (1970); see also Wyatt v. United States,
574 F.3d 455, 458 (7th Cir. 2009). The defendant must also show that to reject the plea
agreement and go to trial would have been rational under the circumstances. Padilla v.
Kentucky, 559 U.S. 356, 372 (2010).
III. ANALYSIS
A. Hernandez-Barajas Did Not Waive His Appeal Rights.
Hernandez-Barajas first claims that his counsel did not discuss his appeal rights with him,
and that he did not know that by pleading guilty he was giving up his appeal and collateral attack
rights. Pet. at 4 (Doc. 1). However, Hernandez-Barajas is incorrect—he pleaded guilty without
a plea agreement and did not waive any of his appeal or collateral attack rights. Moreover, his
allegations regarding his counsel’s advice is contrary to the record. At the change of plea
hearing, his counsel told the Court that Hernandez-Barajas elected to reject the Government’s
proposed plea agreement that included appellate and collateral attack waivers for the very reason
that it included such waivers. Plea Tr., R. 22 at 15. At the hearing, Hernandez-Barajas also
directly acknowledged that he had reviewed the proposed plea agreement, had discussed it with
his counsel, and decided to reject the agreement. Id. Later in the hearing he was advised by the
Court that he had the right to appeal his sentence. Id. at 19. He was again advised of his appeal
rights at the end of his sentencing hearing on December 11, 2017. See R. Dec. 11, 2017 Minute

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Entry. The Court finds that the record shows that his counsel did discuss his appeal rights with
him and that he did not give up any appeal or collateral attack rights. Therefore, HernandezBarajas has not shown that counsel’s performance was deficient.
Hernandez-Barajas has also not alleged any prejudice. As he did not give up his
appellate rights, anything he wished to appeal could have been appealed. Accordingly, this
ground for relief must be denied.
B. Hernandez-Barajas Was Not Denied Effective Assistance of Counsel with
Regard to his Safety Valve Eligibility Under 18 U.S.C. § 3553(f).
As Hernandez-Barajas’ second ground for relief, he argues that counsel was ineffective
because counsel told him “if” he qualified for the safety valve, he would have a lower sentence.
The Court finds nothing facially deficient about this advice. Under the “safety valve” of 18
U.S.C. § 3553(f), the Court may impose a sentence without regard to the statutory minimum
sentence proscribed under § 841 if certain conditions are met. If Hernandez-Barajas qualified, he
would have been eligible for a lower sentence. Therefore, counsel’s statements to HernandezBarajas was not wrong.
Moreover, even if there was some confusion as to his eligibility prior to the change of
plea hearing, during his change of plea hearing, it was clear he would be subject to the ten-year
minimum imprisonment sentence. At the change of plea hearing, the Government stated that the
minimum sentence would be ten years in prison (which is 120 months), to a maximum of life in
prison. Plea Tr., R. 22 at 10. Defense counsel agreed and Hernandez-Barajas acknowledged that
he understand the potential minimum and maximum sentences. Id. at 10-11. Defense counsel
also provided an estimate of Hernandez-Barajas’ advisory guidelines offense level as 31, with a
criminal history category of II, resulting in a sentencing range of 121 to 158 months’

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imprisonment. Id. at 18. Accordingly, prior to pleading guilty Hernandez-Barajas was aware of
the potential penalties he faced.
The PSR concluded that he had five criminal history points: 1 from a 1999 conviction for
unlawful possession of cannabis in Rock Island County, Illinois; 2 from a 2012 conviction for
obstructing justice, driving under the influence of alcohol, and driving while license revoked in
Henry County Illinois, and 2 because he committed the instant offense while under a criminal
justice sentence in Henry County Illinois. See PSR, R.19 at ¶¶ 40-46. The PSR found that based
upon a total offense level of 31 and a criminal history category of III, his guideline sentencing
range was 135 to 168 months’ imprisonment. PSR, R. 19 at ¶ 83.
At the time of Hernandez-Barajas’ sentencing, a defendant only qualified if he did not
“have more than 1 criminal history point, as determined under the sentencing guidelines.” 18
U.S.C. 3553(f)(1) (West 2010). With five criminal history points, Hernandez-Barajas was
ineligible for the safety valve, and the Court was required to sentence him to a statutory
minimum of 120 months’ imprisonment. The Court sentenced Hernandez-Barajas to a below
guidelines sentence of 120 months’ imprisonment—which was below defense counsel’s estimate
for his guidelines range at the change of plea hearing as well.
As his ineligibility for the safety valve was a result of his prior convictions, there was
nothing counsel nor Hernandez-Barajas could have done to make him qualify, even if counsel
initially incorrectly thought Hernandez-Barajas could qualify for the safety valve. The advice
that he might qualify for the safety valve certainly does not fall below the “wide range of
reasonable professional assistance.” Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir.
2011); Mosley v. Atchison, 689 F.3d 838, 847-48 (7th Cir. 2012) (noting there is “significant
latitude for permissible attorney conduct”). Hernandez-Barajas has not shown that his counsel’s

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performance was deficient.
Even if Hernandez-Barajas could show counsel’s performance was deficient, he has not
alleged any prejudice. To prove prejudice, Hernandez-Barajas must show that there was a
reasonable probability that he would not have pleaded guilty he if knew he would be ineligible
for the safety valve. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1970) (“[I]n order to
satisfy the ‘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.”); Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009); United
States v. Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005) (“The question. . . is whether the mistake
affected the decision to plead guilty.”). Here, Hernandez-Barajas has not even alleged that he
would not have pleaded guilty. Further, as the Government notes, the evidence against him was
overwhelming “consisting of statements from an informant who obtained a significant amount of
methamphetamine from Hernandez-Barajas, a search warrant executed at Hernandez-Barajas’s
home where agents found approximately a pound of methamphetamine buried in his backyard in
a bag with Hernandez-Barajas’s fingerprint on it, and finally, Hernandez-Barajas’s extensive
post-arrest statement in which he admitted to years of drug trafficking with others and possession
of the methamphetamine found in his backyard.” Resp. at 11-12 (Doc. 4); R. 22 at 19-23.
Hernandez-Barajas did not submit a reply providing the Court with any reason to find that there
was a reasonable probability that he would have gone to trial. Accordingly, the Court finds this
ground for relief is without merit and must be denied.
Relatedly, in Hernandez-Barajas’ third ground for relief, he objects to counsel making
him go “through the motions of it” and have “an interview with the agents” when he was
ineligible for the safety valve. It is not entirely clear what interview Hernandez-Barajas is

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referring to, but the Court presumes that Hernandez-Barajas is referring to the safety valve
requirement that the defendant provide “to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same course of conduct or
of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). Assuming that he provided this
information, the Court understands that it may have been frustrating to have fulfilled this
requirement of the safety valve when he was, in fact, ineligible for the desired relief. However,
as explained above, Hernandez-Barajas has not shown there was any prejudice that arose from
any advice regarding his potential eligibility for the safety valve, as Hernandez-Barajas has not
shown a reasonable probability that he would have gone to trial. Therefore, this ground must
also be dismissed.
C. The Record Contradicts Hernandez-Barajas’ Claim That a Language Barrier
Prevented Him from Fully Understanding the Proceedings.
Finally, in Ground 4, Hernandez-Barajas alleges that his limited knowledge of the laws
and his language barrier prevented him from understanding all of the proceedings, and that,
combined with “the poor legal advice,” caused him to waive his appeal rights and sign a plea
waiving those rights. Pet. at 8 (Doc. 1). However, Hernandez-Barajas stated at the change of
plea hearing that he could “speak, read, and write and understand English” “about 90 percent.”
Plea Tr., R. 22 at 5. When asked if he had had any difficulty communicating with counsel about
his case, he stated “not at all.” Id. Regardless, an interpreter was provided to Hernandez-Barajas
at every Court hearing. Even with the interpreter, Hernandez-Barajas still elected to give all of
his responses in English. See Plea. Tr. R. 22 at 2 (“Although interpretation was provided, all of
the defendant’s responses were given in English by the defendant himself.”).
Further, as the Court discussed above, Hernandez-Barajas neither signed a plea

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agreement nor waived his appellate rights. Accordingly, the prejudice he alleges from his
alleged inability to understand the proceedings did not happen. This claim must be denied as
well.
IV. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, he must first obtain a certificate of
appealability. See 28 U.S.C. § 2253(c) (providing that an appeal may not be taken to the court of
appeals from the final order in a § 2255 proceeding unless a circuit justice or judge issues a
certificate of appealability). A certificate of appealability may issue only if Petitioner has made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Here,
Petitioner has not made a substantial showing of the denial of a constitutional right. The Court
declines to issue a certificate of appealability.
V. CONCLUSION
For the reasons stated, Petitioner Luis Alberto Hernandez-Barajas’ Motion to Vacate, Set
Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1) is DENIED. The Court declines to
issue a certificate of appealability. This case is CLOSED.
Signed on this 24th day of June 2019.
s/ James E. Shadid
James E. Shadid
United States District Judge

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