United States of America v. Herrera
Filing
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MEMORANDUM Opinion and Order: Petitioner's motion to submit affidavit 12 is granted. The information set forth in that affidavit satisfies the court that a hearing is necessary. The Federal Defender is directed to identify an attorney to represent Mr. Herrera for purposes of this hearing. A status conference is set for March 1, 2016 at 9:00 a.m. Signed by the Honorable Rebecca R. Pallmeyer on 2/12/2016. Mailed notice. (etv, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
CLACY WATSON HERRERA,
Defendant.
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No. 14 C 1933
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Petitioner Clacy Watson Herrera was convicted of multiple drug offenses and sentenced
to 340 months in prison. The evidence showed that during the period from 1996 to 1999,
Herrera, a resident of Panama, supplied multiple kilograms of cocaine and heroin to drug
dealers in the United States. The mechanism for smuggling the drugs is noteworthy: in a
number of instances, the drugs were concealed in cans of baby formula that were re-sealed and
then carried across the border by couriers. To defuse suspicion, the couriers traveled with
babies—sometimes not their own children, but “rented” from the babies’ parents.
In other
instances, female couriers smuggled drugs in packages inserted into their body cavities.
Ultimately, the government charged 26 defendants in a 44-count indictment. Defendant Herrera,
the lead Defendant, was extradited to the United States, tried before a jury, and convicted on 8
of the 14 counts against him:
one count of conspiracy, and seven counts of importing or
attempting to import cocaine and heroin.
Herrera appealed his conviction, challenging
procedural and evidentiary rulings, but the Seventh Circuit affirmed, and the Supreme Court
denied Herrera’s petition for certiorari. United States v. Herrera, 704 F.3d 480 (7th Cir.), cert.
denied, 134 S.Ct. 175 (2013).
Herrera now seeks relief from his sentence pursuant to 28 U.S.C. § 2255, arguing that
he was deprived of the effective assistance of counsel at trial and on appeal. (Pet'r's Mot. [1],
hereinafter "Pet.") Herrera contends that in light of the evidence, his attorney should have
counseled him to plead guilty. Herrera alleges, in addition, that counsel was ineffective at
sentencing and on direct appeal. As explained here, the record defeats any suggestion that
counsel failed to provide an effective representation at sentencing or on appeal, but the court
will conduct a hearing on Herrera’s argument that counsel should have advised him to plead
guilty.
DISCUSSION
The standards that govern petitions for relief under 28 U.S.C. § 2255 are familiar. Such
relief "is available only in extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has occurred,” resulting in “a complete
miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). Generally,
before a court may consider a § 2255 petition, the claims must have been raised and exhausted
on direct appeal, Massaro v. United States, 538 U.S. 500, 504 (2003), except that a petitioner
may raise an ineffective assistance of counsel claim under § 2255 regardless of whether or not
petitioner could have raised the claim on direct appeal. Id. A complaint drafted by a pro se
litigant, no matter how unartfully pleaded, is held to less stringent standards than formal
pleadings drafted by counsel. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th. Cir. 1997) (quoting
Hughes v. Rowe, 449 U.S. 5, 9 (1980)).
Herrera’s claim of ineffective assistance requires him to show that counsel was deficient
and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The deficiency prong requires that the petitioner demonstrate that counsel's performance fell
below an objective standard of reasonableness. Strickland, 466 U.S. at 688. The prejudice
prong requires a showing that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 694. In assessing this claim, the court is highly
deferential to counsel and observes “a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance," Strickland, 466 U.S. at 689. A failure to
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establish either deficient performance or prejudice dooms the claim, Gant v. United States,
627 F.3d 677, 682 (7th Cir. 2010) (citing Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir.
1996)), and if the petitioner is unable to make a sufficient showing on one of the Strickland
prongs, the court need not consider the other. Strickland, 466 U.S. at 697; see Atkins v. Zenk,
667 F.3d 939, 946 (7th Cir. 2012).
Herrera alleges he received ineffective assistance in connection with his decision to
proceed to trial, at sentencing, and on direct appeal.
Because the arguments concerning
sentencing and appeal are straightforward, the court addresses them first.
Gabriel Fuentes, Herrera’s appointed counsel, submitted a 38-page sentencing
memorandum, supported by 61 pages of exhibits.
The government responded to that
memorandum, and counsel submitted an 18-page reply and followed that with another threepage memorandum.
Mr. Fuentes’s performance at the sentencing hearing was equally
comprehensive; the proceeding was conducted over two days, consumed 141 pages of
transcript, and reflected thoughtful preparation on a number of issues. Mr. Fuentes continued
his representation of Herrera on appeal, and his submissions to the Seventh Circuit were
similarly exhaustive. Herrera nevertheless argues that counsel was ineffective at sentencing
and on appeal, but neither of these claims has merit.
I.
Sentencing Issues
A.
Enhancement for Use of a Minor
First, Herrera argues that counsel should have objected to the court’s imposition of a
two-level enhancement to Herrera’s base offense level under Sentencing Guideline § 3B1.4 for
“use of a minor” in connection with the offense. No objection to this guideline could have been
sustained, however, and counsel was not ineffective in failing to raise it.
The relevant provision, U.S.S.G. § 3B1.4, states: "If a defendant used or attempted to
use a person less than eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense, increase by 2 levels." "Use" includes "directing,
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commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting."
U.S.S.G. § 3B1.4, appl. n. 1. The Seventh Circuit defines the word "use" within the guideline as
requiring a showing of some affirmative act by the defendant beyond mere knowledge of
participation by the minor in the criminal activity. United States v. Acosta, 474 F.3d 999, 100001 (7th Cir. 2007).
In Acosta, the defendant was a member of a gang that used minors in drug distribution.
In her sentencing on drug distribution charges, the district court assessed the two-level
enhancement for use of a minor. Acosta, 474 F.3d at 1000. The appellate court vacated that
enhancement, however, reasoning that though Acosta was aware of the minors’ participation,
there was no evidence that defendant independently directed or encouraged the minors, or that
she played any role in bringing minors into the criminal enterprise. Id. at 1003.
In other cases, however, the Seventh Circuit has interpreted the “use of a minor”
enhancement “fairly broadly,” United States v. Ramsey, 237 F.3d 853, 859 (7th 2001), and has
affirmed its application so long as the defendant took “some affirmative act to involve a minor.”
United States v. Vivit, 214 F.3d 908 (7th Cir. 2000). The evidence in this case plainly meets that
test. Herrera and a co-defendant developed the plan to use infants as “cover” for drug couriers
importing cocaine inside cans of baby formula. Defendant himself processed the cocaine into a
liquid and returned it to the cans, soldering them shut. Herrera was involved in “counseling” and
“procuring” the minors: he met personally with the couriers and the babies, arranged for lodging
for them, and provided them with infant formula and other supplies. Herrera argues that there is
no evidence that he personally used a minor to avoid detection, as he himself never came to the
United States until his arrest and extradition, but Herrera admits that he was a "chauffeur" for
his couriers and the infants during some of their trips to Panama. (Pet. 7 &10). This evidence
amply satisfies the court that Herrera was involved in using a minor as defined in U.S.S.G. §
3B1.4. Counsel’s objection to this enhancement would have been frivolous, and Mr. Fuentes
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was not ineffective for declining to make such an objection. See United States v. Cooke, 110
F.3d 1288, 1302 (7th Cir. 1997).
B.
The Leadership Enhancement
Herrera next claims that counsel was ineffective at sentencing for failing to challenge the
application of the leadership enhancement under U.S.S.G. § 3B.1.1. (Pet. at 7.) This claim also
fails—first, because counsel did in fact challenge the enhancement. Counsel argued in his
sentencing memorandum that the court should find Herrera did not exercise a leadership role
but was instead a middleman who had no real control over other conspirators.
(Defense
Position Paper in 01 CR 1098-1 [867] at 23-25.) Counsel made similar arguments orally at
sentencing. (See Sent. Trans. in 01 CR 1098 [911] at 44.) The court overruled the objection,
finding ample evidence to support the conclusion that Herrera was in fact an organizer or leader
of the criminal enterprise. Absent a showing that counsel’s performance was deficient in some
way, the fact that the court ruled against Herrera in itself does not mean counsel was ineffective.
C.
Sentencing Disparities
Herrera next claims that counsel was ineffective at sentencing for failing to make
appropriate arguments about purported disparities between the sentence he received and the
sentence imposed on other participants.
Counsel had a duty to inform the court of the
sentences imposed on other defendants, Herrera urges (Petitioner’s Reply [11] at 5), and
should have done so by preparing a chart for the court’s convenience. (Pet. at 10.)
There is some irony in this argument: defense counsel’s sentencing submission was
lengthy, detailed, and illustrated with charts—one comparing the government’s proposed drug
quantities with what counsel contended the evidence showed, and a second reviewing the jury’s
findings on a count-by-count basis. (Sentencing Memorandum in 01 CR 1098 [867] at 6, 14.)
Counsel did not create a third chart displaying the sentence imposed on co-defendants, but he
did specifically address the issue of sentence disparities. Specifically, he advocated for a more
lenient sentence for Herrera than what had been imposed on other conspirators, assuring the
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court that such a sentence would be appropriate because Herrera’s role was “uniquely different
from that of his codefendants.” (Id. at 31.) Thus, counsel noted, though other higher-level
defendants (who pleaded guilty) received 120-month sentences, the sentence of just 77 months
he proposed for defendant was justified by the fact that defendant was not as directly involved in
the day-to-day operations of the criminal enterprise.
The presentence report, of course, listed each of Herrera’s co-defendants and the
sentence he or she received, so a chart would arguably have been redundant. In any event, to
the extent that counsel chose not to use a chart to make this point, that decision can only be
viewed as one of reasonable strategy. A strategic decision can almost never be challenged as
ineffective assistance and counsel's performance is viewed deferentially, "with the
understanding that there is a great deal of room for disagreement among reasonable attorneys
as to the appropriate strategy or tactics to employ in the course of representation." Woods v.
McBride, 430 F.3d 813, 821 (7th Cir. 2005).
D.
Allocution
Herrera next claims that counsel was ineffective for advising him not to make a
statement at sentencing. (Pet. at 13-14). Pro se litigants are held to a less stringent standard of
pleading, Gutierrez, 111 F.3d at 1369, but Herrera’s own submission presents the reason that
this claim, too, must be dismissed: Herrera observes that it “may have been understandable for
counsel to believe that the best course of action was for the Petitioner to not make a statement
at his sentencing because counsel honestly believed that the Petitioner would be granted a new
trial as a result of the appeal process." (Pet. at 13-14.) As explained above, a strategic decision
must be viewed deferentially and can almost never be challenged as ineffective assistance of
counsel. United States v. Dyer, 784 F.2d 812, 817 (7th Cir. 1986).
Notably, Herrera now
suggests he could have explained “exactly what his role consisted of instead of allowing the
testimony of cooperating Government witnesses and unsubstantiated allegations by the
Government to go uncontested,” but he has not yet identified the purported inaccuracies in the
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evidence. In short, Herrera has not explained what he would have said at sentencing that might
have resulted in greater leniency. There is no basis for a finding of ineffective assistance in this
regard.
II.
Strategy on Appeal
Trial counsel represented Herrera on appeal, as well, and filed a substantial brief. The
appeal challenged the court’s response to a juror’s question; the court’s admission of fingerprint
evidence; the reassignment of the case, mid-trial, to another district judge, at the direction of the
Court of Appeals, see In re United States, 614 F.3d 661 (7th Cir. 2010); and the court’s
consideration, at sentencing, of relevant conduct. Herrera now claims his appellate counsel
was ineffective.
The two-pronged Strickland test is employed to evaluate the effectiveness of appellate
counsel, as well. Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008) (citing Gray v.
Greer, 800 F.2d 644, 646 (7th Cir. 1985)). To satisfy the deficiency prong on appeal, Petitioner
would need to establish that his attorney ignored a significant and obvious issue, and that the
issue[s] counsel ignored were clearly stronger than an issue raised by counsel on appeal.
Suggs, 513 F.3d at 678 (citing Strickland, 466 U.S. at 694).
Herrera's claims do not satisfy that test. First, he appears to believe that counsel was
ineffective in failing to challenge the court’s consideration of acquitted conduct in determining
drug quantity.
(Pet. at 15.) The record squarely defeats this claim: the appellate record
confirms that counsel did challenge the court’s reliance on acquitted conduct in determining
drug quantity. (Brief of Defendant-Appellant in 11-2894 [12], at 44-51; Reply Brief of DefendantAppellant in 11-29894 [23], at 25-26.) The case law defeats this claim, as well. The Seventh
Circuit, like all others, has held that sentencing judges may determine facts relevant to
sentencing on a preponderance-of-the-evidence standard, and may consider acquitted conduct.
United States v. Lucas, 670 F.3d 784, 790 (7th Cir. 2012); United States v. Walltower, 643 F.3d
572, 574-579 (7th Cir. 2011); United States v. Booker, 612 F.3d 596, 602-603 (7th Cir. 2010);
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United States v. Ashqar, 582 F.3d 819, 823-825 (7th Cir. 2009). Alleyne v. United States,
133 S.Ct. 2151 (2013) does not alter this practice. That case held that any fact that increases
the statutory maximum or minimum penalty must be found by the jury. Id. at 2161, n.2. The
Court acknowledged, however, that its holding did not preclude judicial factfinding at sentencing,
even though “such findings of fact may lead judges to select sentences that are more severe
than the ones they would have selected without those facts.” Id.
Counsel failed, Herrera argues, to challenge the district court's drug quantity finding, to
challenge the court's application of the enhancement for use of a minor, to challenge the
enhancement for Herrera’s leadership role, or to argue sentence disparities. (Pet. at 16.) But
he offers no basis for the conclusion that any of these challenges would have been clearly
stronger than the ones that counsel did assert. Counsel did make arguments regarding drug
quantity, role in the offense, and sentence disparities, before the district court, and Herrera has
not suggested any basis on which the district court’s dispositions of those issues were infirm.
Counsel did not challenge the “use of a minor” enhancement, and this court has explained why
such a challenge would have been frivolous. In any event, the decision not to raise the matter
before the district court precluded its consideration by the Court of Appeals. There is no basis
for a finding of ineffective assistance on appeal.
III.
Advice Concerning a Possible Plea
As explained above, there is no basis for a finding of ineffective assistance with respect
to any aspects of counsel’s performance that the court can assess or observe. Herrera also
argues, however, that counsel was ineffective in one arena that the court does not observe.
Specifically, Herrera contends that counsel should have strongly advised him against
proceeding to trial. He argues that “[g]iven the broad admissibility of hearsay testimony; the
expansive admissibility of expert testimony; and the limitless admissability [sic] of physical
evidence in federal trials, it is difficult to imagine how an attorney of Mr. Fuentes’ stature did not
realize that a conviction, if only on a count or two, was inevitable . . . . Indeed, Petitioner was
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assured that he stood a ‘good chance’ of being acquitted of the charges.” (Pet. at 5-6.) In an
affidavit submitted more recently, Herrera states that “counsel never informed [him] of the
weight of evidence . . . or the inner workings of the United States Criminal Justice system,”
never told him “that to proceed to trial was not a good idea,” and directed him not to discuss his
case with anyone. (Affidavit of Clacy Watson Herrera [12] at ¶¶ 1-3.) Thus, Herrera asserts, “it
was only after speaking to another inmate that Petitioner learned that he could get less time if
he pled guilty with a plea agreement, or a blind plea with the judge.” (Id. ¶ 3.) He asserts,
further, that he “told counsel he did not want to go to trial but counsel told Petitioner it was too
late and there was nothing else to do.” (Id. ¶ 4.)
A defendant can prove that his counsel's performance was deficient if he demonstrates
that counsel did not make a good-faith effort to discover the relevant facts, to analyze those
facts in terms of the applicable legal principles and to discuss that analysis with his client.
United States v. Barnes, 83 F.3d 934, 940 (7th Cir. 1996). Effective assistance of counsel
includes appropriate pre-trial counseling. Thus, the Supreme Court has recognized that the
Sixth Amendment right to counsel extends to the plea-bargaining process, and advice to reject a
plea offer on the ground that the defendant would not be convicted at trial could constitute
ineffective assistance. See Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct.
1376 (2012). The remedy for such ineffective assistance, the Court observed, would be to
require the state to re-offer the plea deal and, if petitioner accepted it, to permit the state court,
in its discretion, to resentence him.
In this case, as in any case alleging ineffective assistance, petitioner bears the burden of
establishing both inadequate performance and resulting prejudice. That showing is particularly
complicated where petitioner had a fair trial, but claims that the decision to proceed to trial was
itself the product of ineffective assistance. The Supreme Court addressed such a claim in Burt
v. Tidlow, 134 S.Ct. 10 (2013), where petitioner had entered into a favorable plea agreement,
but then made a claim of innocence, hired new counsel, and withdrew the plea. Found guilty by
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the jury, he was sentenced to a term substantially longer than the one he had bargained for.
134 S.Ct. at 14. On direct appeal, petitioner argued that counsel had advised him to withdraw
the plea without sufficient investigation, “thereby failing to realize the strength of the State’s
evidence and providing ineffective assistance of counsel.”
Id.
The Michigan state courts
rejected the argument, emphasizing the defendant’s claim of innocence; in their view, when a
defendant makes such a claim, advice to proceed to trial cannot be unreasonable. But the Sixth
Circuit concluded defendant was entitled to relief under § 2255, because there was no evidence
that counsel had ever fully informed the defendant of the possible consequences of withdrawing
his guilty plea.
The U.S. Supreme Court reversed. The Court noted that there appeared to be no
explanation for petitioner’s decision to withdraw his plea other than his own second thoughts
and claim of innocence. The Sixth Circuit’s reliance on the absence of evidence was “troubling,”
the Court held, because counsel is “strongly presumed” to have rendered adequate assistance
in the plea negotiation context, and it is the petitioner who bears the burden of offering evidence
that trial counsel gave incorrect advice or failed to give material advice. Id. at 17. As petitioner
had entered a guilty plea earlier, the Court found it “highly unlikely” that he labored under any
confusion about the strength of the evidence against him.
Id. at 18.
Concurring, Justice
Ginsburg noted that petitioner had never been willing to testify against his co-defendant, and the
prosecutor would not have offered a plea deal that did not require such testimony.
There is no reference in Herrera’s submissions to any proposed plea agreement, and no
indication the government was prepared to offer one. Had Herrera pleaded guilty without an
agreement, he presumably would have been forced to plead guilty to all of the counts against
him, including several on which the jury found him not guilty. The government contends that
this means Herrera cannot establish any prejudice resulting from counsel’s alleged failure to
encourage him to plead guilty. (Government’s Response to Defendant’s Motion to Vacate [7] at
9 n. 4.)
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This court is less certain. Had Herrera pleaded guilty even without a plea agreement
(referred to sometimes as a “blind plea”), he may have earned a three-point reduction in his
sentence for “acceptance of responsibility” pursuant to U.S.S.G. § 3E1.1. Counsel’s alleged
failure to advise his client of the legal consequences of a guilty plea, with or without a plea
agreement, could therefore constitute ineffective assistance. See United States v. Hernandez,
450 F. Supp.2d 950 (N.D. Ia. 2006) (concluding, after an evidentiary hearing, that counsel did
not give adequate advice on this question and that petitioner was therefore entitled to
resentencing on the basis of a “straight-up” (that is, “blind”) plea of guilty). The record before
the court does not defeat Herrera’s contention that he was willing to enter such a plea. Though
Herrera continues to challenge certain sentencing enhancements, he has not proclaimed actual
innocence. Compare United States v. Stevens, 149 F.3d 747, 749 (8th Cir. 1998) (defendant
cannot establish prejudice resulting from counsel’s failure to advise him of the advantages of
pleading guilty because there was no “reasonable probability that he would have acknowledged
his guilt had he been properly advised . . . .”); Richards v. United States, No. 05-CR-35-TS,
2009 WL 3109757, at *4 (N.D. Ind. Sept. 24, 2009) (counsel’s failure to advise plaintiff to plead
guilty was not ineffective assistance, where there was no plea agreement and defendant
protested his innocence). Nor is there a basis for this court to presume that Herrera did know
he was entitled to plead guilty and earn a guidelines reduction. Compare Paez-Ortiz v. United
States, 200 Fed. App’x. 946, 948 (11th Cir. 2006) (petitioner cannot demonstrate prejudice from
counsel’s failures where the record shows that defendant “was aware of his option to plead
guilty to the charged offenses, and was aware of the consequences a guilty plea would have at
sentencing.”); Herrera v. United States, No. 07 C 7235, 2010 WL 1541640, at *3 (N.D. Ill. Apr.
15, 2010) (alleged failure to advise defendant that he could plead guilty and receive an
adjustment for acceptance of responsibility did not prejudice defendant who had entered a blind
plea in another case just two years earlier, and received the adjustment).
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It may well be that counsel did in fact discuss the possibility of a guilty plea with Mr.
Herrera, and that Herrera rejected it, but it is also possible that counsel did not adequately
inform Herrera of the plea process. Assuming that no plea agreement was offered (there is no
evidence on this issue), it may be that a blind plea to all of the charges in this case could not
have yielded a more favorable sentence than the below-guidelines sentence this court
imposed—meaning that Herrera was not prejudiced by counsel’s alleged failures. The court
concludes, however, that these determinations cannot be made without an evidentiary hearing.
See Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (so long as petitioner’s
allegations are not “vague, conclusory, or palpably incredible,” an evidentiary hearing must be
granted if the petitioner “alleges facts that, if proven, would entitle him to relief” (quoting Stola v.
United States, 22 F.3d 766, 768 (7th Cir. 1994))).
In Estremera v. United States, 724 F.3d 773 (7th Cir. 2013), petitioner stated in an
affidavit that his attorney never advised him that the prosecutor’s final plea offer did not
specifically require him to testify against others, and that he would have accepted such an offer.
On appeal from denial of § 2255 relief, the government argued “that a hearing is unnecessary
because [petitioner] was sure never to plead guilty,” but the Seventh Circuit directed the district
court to conduct a hearing on the issue. Id. at 778; see also Griffin v. United States, 330 F.3d
733, 739 (6th Cir. 2003) (finding sufficient objective evidence to warrant an evidentiary hearing
on whether there was a reasonable probability that petitioner would have accepted plea offer if
he had known about it); United States v. Villasenor, No. 13-c-148, 2014 WL 5858718, at *4 (N.D.
Ill. Nov. 12, 2014) (granting petitioner hearing to develop claim that he would have accepted
alleged plea offer). In this case, too, the court concludes a hearing is necessary on the issue of
what advice, if any, Herrera received concerning the entry of a guilty plea, and whether the
advice he received (or did not receive) prejudiced him.
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CONCLUSION
Petitioner’s motion to submit affidavit [12] is granted. The information set forth in that
affidavit satisfies the court that a hearing is necessary. The Federal Defender is directed to
identify an attorney to represent Mr. Herrera for purposes of this hearing. A status conference is
set for March 1, 2016 at 9:00 a.m.
ENTER:
Dated: February 12, 2016
________________________________________
REBECCA R. PALLMEYER
United States District Judge
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