Alejandro Ramirez v. USA

Filing 1

OPINION AND ORDER: DENYING 33 MOTION to Vacate under 28 U.S.C. 2255 by Carlos Alejandro Ramirez. Signed by Judge Theresa L Springmann on 11/21/2014. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CARLOS ALEJANDRO RAMIREZ
v.
UNITED STATES OF AMERICA

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CAUSE NO.: 1:12-CV-107-TLS
(1:10-CR-19)

OPINION AND ORDER
This matter is before the Court on the Defendant’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 33] filed on
April 2, 2012. The Defendant, who is now proceeding pro se, contends that his attorney rendered
ineffective assistance of counsel because he failed to notify the Defendant during plea
negotiations that his federal sentence would not run concurrently with a separate sentence on a
pending charge in state court. For the reasons set forth in this Opinion and Order, the
Defendant’s Motion will be denied.

BACKGROUND
On March 24, 2010, a federal grand jury returned a two count Indictment [ECF No. 1]
against the Defendant, charging him with a violation of 21 U.S.C. § 846 for conspiring to
distribute 50 grams or more of methamphetamine, a Schedule II Controlled Substance; and
violations of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 for distributing 50 grams or more of
methamphetamine, a Schedule II Controlled Substance, or aiding and abetting the same. On
March 25, 2010, the Defendant’s request for appointment of counsel was granted. [ECF No. 7]
and an appearance of counsel was entered by Thomas N. O’Malley on behalf of the Defendant.
[ECF No. 8.]

On June 9, 2010, the Defendant and the Government filed a Plea Agreement in which the
Defendant agreed to plead guilty to Count 2 of the Indictment charging him with violations of 18
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 in exchange for the dismissal of Count 1 of the Indictment
charging him with a violation of 21 U.S.C. § 846. (Plea Agr. ¶ 8(a) & 8(d), ECF No. 15.) The
Plea Agreement contained the Defendant’s acknowledgment that the Court would determine an
appropriate sentence:
I understand that under the U.S. Sentencing Guidelines, the Court, in light of an
investigation by the United States Probation Office, will determine the applicable
sentencing guideline range, and that the Court will determine all matters, whether
factual or legal, relevant to the application of the U.S. Sentencing Guidelines. I
understand that the U.S. Sentencing Guidelines are advisory only, and that the specific
sentence to be imposed upon me will be determined by the judge after a consideration
of a pre-sentence investigation report, input from counsel for myself and the
government, federal sentencing statutes, and the U.S. Sentencing Guidelines.
(Plea Agr. ¶ 7, ECF No. 15.) The Plea Agreement contained no reference to the Defendant’s
state sentence. The Plea Agreement also contained the following waiver:
I understand that the law gives a convicted person the right to appeal the
conviction and the sentence imposed, I also understand that no one can predict the
precise sentence that will be imposed, and that the Court has jurisdiction and
authority to impose any sentence within the statutory maximum set for my
offense(s) as set forth in this plea agreement; with this understanding and in
consideration of the government’s entry into this plea agreement, I expressly
waive my right to appeal or to contest my conviction and my sentence and any
restitution order imposed or the manner in which my conviction or my sentence or
the restitution order was determined or imposed, to any Court on any ground,
including any claim of ineffective assistance of counsel unless the claimed
ineffective assistance of counsel relates directly to this waiver or its negotiation,
including any appeal under Title 18, United States Code, Section 3742 or any
post-conviction proceeding, including but not limited to, a proceeding under Title
28, United States Code, Section 2255.
(Plea Agr. ¶ 8(e)).
On June 23, 2010, the Court conducted a change of plea hearing, at which the Defendant,

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pursuant to the Plea Agreement, pled guilty to Count 2 of the Indictment. [ECF No. 18.] Because
the Defendant reads, writes, and speaks the Spanish language, the hearing was interpreted by a
sworn and court-certified interpreter.
Prior to accepting the Defendant’s plea, the Court swore the Defendant and made detailed
inquiry into his competence to plead, the voluntariness of his plea, and his understanding
regarding specific terms of the Plea Agreement. The Court found that the Defendant was fully
competent and capable of entering an informed plea, that the Defendant was aware of the charges
and the consequences of the plea, and that the plea of guilty was knowing and voluntary, and
supported by an independent basis in fact containing each of the essential elements of the offense.
The Court also inquired as to the binding terms of the Plea Agreement. The Court specifically
inquired regarding (1) the Defendant’s waiver of his right to appeal his conviction, sentence, and
any restitution order imposed or the manner in which his conviction, sentence, or restitution order
was determined or imposed; (2) his waiver of his right to collaterally attack through a habeas
corpus petition his conviction, sentence, or restitution order and the manner by which his
conviction, sentence, or restitution order was imposed; and (3) his waiver of his right to claim
ineffective assistance of counsel (except as to ineffectiveness directly involving the appellate
waiver or its negotiation). During the hearing colloquy, the Defendant affirmed his understanding
of all terms contained within the Plea Agreement. Accordingly, the Court accepted the plea and
adjudged the Defendant guilty of the offense.
On October 4, 2010, the Court sentenced the Defendant to 87 months imprisonment for
Count 1. [ECF No. 26.] The Defendant’s sentence became final on October 18, 2010. At the time
of his federal sentencing, the Defendant was facing a pending charge in state court for separate

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conduct involving illegal drugs. The state charge was based on conduct occurring between
December 2009 and March 2010. The Defendant was sentenced in state court on July 8, 2011.
On April 2, 2012, the Defendant filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 33]. On April 16, 2012,
the Government filed a Response to the Motion Under 28 U.S.C. § 2255 [ECF No. 35]. On May
3, 2012, the Defendant filed a Reply to the Government Opposition [ECF No. 36].

DISCUSSION
A court may grant relief from a federal conviction or sentence pursuant to § 2255 “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.” 28
U.S.C. § 2255(a). “[R]elief 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) (citing Kafo v.
United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). “[R]elief is appropriate only for an error of
law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently
results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir.
2004) (internal quotation marks and citation omitted).
The Defendant contends that he is entitled to relief because his attorney provided
ineffective assistance of counsel in advising him as to the Plea Agreement; specifically, the
Defendant states that he did not knowingly and voluntarily assent to the Plea Agreement because

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his attorney failed to notify him that his federal sentence would not run concurrently with his
state sentence.
The Government argues that the Defendant’s Motion is barred by (1) the one-year period
of limitation, pursuant to 28 U.S.C. § 2255(f); and (2) the waiver provision in the Plea
Agreement.

A. Period of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996, as contained in 28 U.S.C. §
2255, establishes a limitation period for § 2255 motions. The relevant subsections reads as
follows:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the Defendant was prevented from making a motion
by such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
§ 2255(f). Here, the one-year period of limitation ran from October 18, 2010—the date the
Defendant's sentence became final—until October 18, 2011. The Defendant filed this motion on
April 2, 2012, a date outside the one-year period of limitation. The Defendant did not address the
one-year period of limitation in either his § 2255 motion or his reply to the Government’s
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Opposition.1 No facts indicate that subsections (2) – (4) apply here.
Because the Defendant’s motion was not filed within one year of the date his judgment of
conviction became final—October 18, 2010—the motion is not timely and is barred by the
one-year period of limitation under § 2255(f).

B. Waiver Provision
Alternatively, the Defendant’s motion is also barred by the waiver provision of the Plea
Agreement.
A plea agreement is a type of contract subject to contract law principles tempered by
limits that the Constitution places on the criminal process. See United States v. Bownes, 405 F.3d
634, 636 (7th Cir. 2005). Courts “enforce a plea agreement’s appellate waiver if its terms are
clear and unambiguous and the record shows that the defendant knowingly and voluntarily
entered into the agreement.” United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008)
(quotation marks and citation omitted). “A defendant may validly waive both his right to a direct
appeal and his right to collateral review under § 2255 as a part of his plea agreement.” Keller v.
United States, 657 F.3d 675, 681 (7th Cir. 2011) (citing Jones v. United States, 167 F.3d 1142,
1144 (7th Cir. 1999)). The Seventh Circuit has “generally upheld and enforced these waivers,
with limited exceptions for cases in which the plea agreement was involuntary, the district court

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The Defendant’s § 2255 motion states: “Petitioner is not well spoken in English and now
through due diligence files this petition . . . .” However, as discussed below, when the
Defendant’s federal sentence became final, he knew, or would have known through the
exercise of due diligence, that the Court had not ordered his federal sentence to run
concurrently with his pending state sentence. At the change of plea hearing, with the assistance
of a sworn and court-certified interpreter, the Defendant said he understood that the Plea
Agreement contained all the terms to which he and the Government agreed. The Plea
Agreement contained no reference to the Defendant’s state sentence.

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‘relied on a constitutionally impermissible factor (such as race)’, the ‘sentence exceeded the
statutory maximum,’ or the defendant claims ‘ineffective assistance of counsel in connection
with the negotiation of [the plea] agreement.’” Keller, 657 F.3d at 681 (quoting Jones, 167 F.3d
at 1144-45); see also Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012).
Here, the Defendant's Plea Agreement waives the right to appeal and the right to
collaterally attack the conviction and sentence, “including but not limited to, a proceeding under
Title 28, United States Code, Section 2255.” The language is both clear and unambiguous—and
the Defendant does not argue otherwise.
Nonetheless, the Defendant contends that the waiver provision is unenforceable because
the Plea Agreement, as a whole, was unintelligent or involuntary because of ineffective
assistance of counsel. Hurlow v. United States, 726 F.3d 958, 964-65 (7th Cir. 2013); see also
United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver of appeal is valid, and must
be enforced, unless the agreement in which it is contained is annulled (for example, because
involuntary).” (citations omitted)).
At the outset, in making his ineffective assistance of counsel claim, the Defendant asks
the Court to effectively disregard his statements made within the Plea Agreement and at the
change of plea hearing. Throughout the written Plea Agreement, which the Defendant signed, the
Defendant expressed his understanding of his rights and the various waivers contained in the
Plea Agreement. In Paragraph 11, the Defendant stated his belief that his “lawyer ha[d] done all
that anyone could do to counsel and assist [him], and that [he] . . . underst[oo]d the proceedings
in this case against [him].” In Paragraph 12, he declared that he “offer[ed] [his] plea of guilty
freely and voluntarily and of [his] own accord,” and that “no promises ha[d] been made to [him]

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other than those contained in this agreement, nor ha[d] [he] been threatened in any way by
anyone to cause [him] to plead guilty in accordance with this agreement.” The Plea Agreement
contained no reference to the Defendant's state sentence.
Further, at his change of plea hearing, the Defendant stated under oath—and with the
assistance of a sworn and court-certified interpreter— that he understood the terms of the Plea
Agreement. This statement is strongly presumed to be true. United States v. Ellison, 835 F.2d
687, 693 (7th Cir. 1987). To grant the Defendant's claim would require the Court to find that the
Defendant would not have accepted the Plea Agreement had he understood it contained no
promise of concurrent sentences—even though the Court reviewed the Plea Agreement with the
Defendant, and even though the Defendant stated that he did understand that there were no
promises except those found in the Plea Agreement. While such statements are not an
insurmountable barrier to relief, overcoming the presumption of verity afforded to sworn
statements made at a change of plea hearing is an “uphill battle.” United States v. Bowlin, 534
F.3d 654, 659 – 60 (7th Cir. 2008); see also Key v. United States, 806 F.2d 133, 136 (7th Cir.
1986) (stating that “the representations of the defendant [at a plea hearing] as well as any
findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceeding.”)
As discussed below, the Defendant fails to put forth sufficient evidence to establish an
ineffective assistance of counsel claim that overcomes the strong presumption that his previous
statements were true and accurate.
Ineffective Assistance of Counsel
A claim that ineffective assistance of counsel precluded a knowing and voluntary guilty

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plea is not barred by a waiver of collateral review in a plea agreement. To establish ineffective
assistance of counsel, a defendant must satisfy a two-prong standard. Strickland v. Washington,
466 U.S. 668 (1984). First, a defendant must demonstrate that his attorney’s representation was
“deficient” because it “fell below an objective standard of reasonableness.” Id. at 687–88.
Second, a defendant must show that this deficient performance prejudiced his defense. Id. at 694.
Prejudice is demonstrated by a showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
A court considering a claim of ineffective assistance must apply a strong
presumption that counsel’s representation was within the wide range of reasonable
professional assistance. The challenger’s burden is to show that counsel made errors
so serious that counsel was not functioning as the counsel guaranteed the defendant
by the Sixth Amendment.
Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (internal quotation marks and citations
omitted); see also Yu Tian Li v. United States, 648 F.3d 524, 527–28 (7th Cir. 2011) (“To reflect
the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [a
court’s] review of an attorney’s performance is highly deferential and reflects a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.”) (citing Strickland, 466 U.S. at 689).
In his § 2255 motion, the Defendant argues that counsel failed to present to the Court the
Defendant’s request that his federal sentence and his pending state sentence run concurrently.
The Defendant specifically cites 18 U.S.C. § 3584(a), which provides that a court may order
sentences to run concurrently “[i]f multiple terms of imprisonment are imposed on a defendant at
the same time, or if a term of imprisonment is imposed on a defendant who is already subject to
an undischarged term of imprisonment.”

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However, § 3584(a), by its plain language, applies only when a court is sentencing a
defendant to multiple terms of imprisonment “at the same time,” or when a court sentences a
defendant “already subject to an undischarged term of imprisonment.” When the Court sentenced
the Defendant, he was not “already subject to an undischarged term of imprisonment,” because
his charge in state court was still pending. Neither did the Court sentence the Defendant to
multiple terms of imprisonment “at the same time.” Accordingly, counsel’s performance was not
deficient for failure to ask the Court to do something impermissible under § 3584(a).
Further, to the extent that the failure to make the Defendant’s request—as opposed to a
failure to properly advise the Defendant during Plea Agreement negotiations—is the alleged
deficiency, that goes to performance at sentencing, and would be barred by the waiver provision
of the Plea Agreement. See Bridgeman v. United States, 229 F.3d 589, 593 (7th Cir. 2000)
(stating that ineffective assistance of counsel claims that relate to anything other than plea
negotiation, for example, those related to counsel’s performance at sentencing, are barred by an
enforceable waiver); Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (finding that
because the defendant’s ineffective assistance of counsel claim related only to counsel’s
performance with respect to sentencing, it had nothing to do with the issue of a deficient
negotiation of the waiver and was barred by a waiver).
In his Reply to Government Opposition, the Defendant appears to have modified his
argument by stating that “Counsel [m]isadvi[s]ed [him] during the [n]egotiation of the plea and
waiver as the plaintiff was under the [i]mpression that he would not be under [pending state
charges] or that they would run concurrent with [the federal sentence].”
But aside from his assertion, the Defendant puts forth no objective evidence to counteract

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Strickland’s strong presumption of reasonable professional assistance. See Sullivan v. Fairman,
819 F.2d 1382, 1391 (7th Cir. 1987) (“we expect that few petitioners will be able to pass through
the ‘eye of the needle’ created by Strickland.”) Due to Strickland’s high bar, even a gross
mischaracterization of the sentencing consequences of a plea is not proof of constitutional
deficiency. Bethel v. United States, 458 F.3d 711, 717 (7th Cir. 2006); see also United States v.
Dumes, 313 F.3d 372, 383 (7th Cir. 2002) (upholding denial of motion to withdraw guilty plea
when defendant was not advised that he was a career offender).
And second, as to the prejudice prong of ineffective assistance analysis, the Defendant
has also not established with objective evidence a reasonable probability that, but-for counsel’s
advice, he would not have accepted the plea. See McCleese v. United States, 75 F.3d 1174, 1179
(7th Cir. 1996); see also Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009) (citing Julian
v. Bartley, 495 F.3d 487, 498 (7th Cir. 2007) (stating that, in the plea agreement context, the
prejudice prong focuses on whether counsel’s performance was a decisive factor in the decision
to plead guilty rather than to pursue other options). The Seventh Circuit has “stated many times
that a mere allegation by the defendant that he would have insisted on going to trial is not
sufficient to establish prejudice.” Bethel, 458 F.3d at 718; cf. Toro v. Fairman, 940 F.2d 1065,
1068 (7th Cir. 1991) (holding that the defendant’s self-serving statement alone was insufficient
to establish prejudice with respect to acceptance of a plea).
Here, the Defendant offers only a bare assertion that he would not have accepted the Plea
Agreement, but for his attorney’s ineffective assistance of counsel. In light of the Defendant’s
previous assent and express understanding of the terms of the Plea Agreement—which contained
no reference to the Defendant’s sentence in state court—the Defendant’s assertion is not enough

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to meet the requirements for avoiding dismissal.
Accordingly, the Defendant has failed to put forth sufficient evidence to establish an
ineffective assistance of counsel claim. The Defendant’s 28 U.S.C. § 2255 is therefore barred
under the waiver provision of the Plea Agreement.

C.

Evidentiary Hearing Request
The Defendant has requested that the Court conduct an evidentiary hearing to develop the

record regarding the ineffective assistance claims he presents. A court may deny a § 2255 motion
without 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(b). The Court finds that the
Defendant’s Motion along with the files and records of this case conclusively show that the
Defendant is entitled to no relief. Consequently, an evidentiary hearing is not warranted, and the
Court denies his request.
CONCLUSION
For the reasons stated above, the Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 33] is DENIED.
SO ORDERED on November 21, 2014.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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