Gudino v. USA
Filing
1
OPINION AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255) WITH PREJUDICE. Further, this Court declines to issue Defendant acertificate of appealability. Signed by Judge Rudy Lozano on 12/16/2014. (cc: Gudino)(rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ANTONIO GUDINO
a/k/a “Chronic”,
Defendant.
)
)
)
)
)
)
)
)
)
)
NO. 2:10-CR-109
(2:13-CV-182)
OPINION AND ORDER
This matter is before the Court on the: Motion Under 28 U.S.C.
Section 2255 To Vacate, Set Aside, Or Correct Sentence By a Person
in Federal Custody, filed by Antonio Gudino on May 29, 2013 (DE
#944). For the reasons set forth below, the section 2255 motion is
DENIED.
The Clerk is ORDERED to DISMISS this case WITH PREJUDICE.
The Clerk is ORDERED to distribute a copy of this order to Antonio
Gudino,
#11907-027,
McCreary
USP,
US
Penitentiary,
Inmate
Mail/Parcels, P.O. Box 3000, Pine Knot, KY 42635, or to such other
more current address that may be on file for the Petitioner.
Further, this Court declines to issue Defendant a certificate of
appealability.
BACKGROUND
On November 16, 2011, a Third Superseding Indictment was filed
against Defendant, Antonio Gudino a/k/a “Chronic”, and twenty other
defendants.1
(DE #230).
Gudino was charged in Count One and Count
Two of the 15-count Third Superseding Indictment.
charged
Gudino
and
others
with
conspiracy
to
Count One
participate
racketeering activity in violation of 18 U.S.C. § 1962.
in
Count Two
charged Gudino and others with conspiracy to possess with intent to
distribute and distribute cocaine and marijuana in violation of 21
U.S.C. § 846.
On July 24, 2012, Gudino entered into a plea agreement with
the Government, and the agreement was filed with this Court.
#495).
(DE
In it, Gudino agreed to plead guilty to Count One of the
Third Superseding Indictment, and the Government agreed to move to
dismiss Count Two at the time of the sentencing.
(Id., ¶¶ 7(a) and
8). The Government and Gudino also reached certain agreements that
were not binding on the Court.
(Id., ¶ 9).
Specifically, they
agreed that, “considering the totality of the circumstances for my
involvement in the offense charged in Count One, that a just and
appropriate sentence as to a term of imprisonment is a period of
120 months.”
(Id., ¶ 9(e)).
Additionally, they agreed that if
Defendant continued to accept responsibility for his criminal
conduct, he should receive a two point, and if eligible, an
additional one point reduction in his Guideline offense level.
1
The case had a total of 23 defendants, but two plead guilty prior to
the filing of the Third Superseding Indictment.
2
(Id., ¶ 9(a)).
They also agreed that Gudino was responsible for
the following drug quantities: 150 kilograms or more of a mixture
or substance containing a detectable amount of cocaine and 1000
kilograms
or
more
of
a
mixture
detectable amount of marijuana.
and
substance
(Id., ¶ 9(b)).
containing
a
Furthermore,
Gudino and the Government agreed that Gudino possessed a firearm in
connection with the offense and that Gudino should receive a twolevel reduction in offense level for being a minor participant in
the criminal activity.
(Id., ¶ 9(c)-(d)).
In exchange for these
benefits, the plea agreement contained the following wavier:
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 offenses 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 or the manner in which my
conviction or my sentence 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, Unites States Code, Section 3742 or any
post-conviction proceeding, including but not
limited to, a proceeding under Title 28,
Unites States Code, Section 2255.
(Id., ¶ 10).
Further, Defendant agreed that his attorney had “done all that
3
anyone could do to counsel and assist [him],” that he was offering
his guilty plea “freely and voluntarily and of [his] own accord,”
that “no promises [had] been made to [him] other than those
contained in [the] agreement,” and that he had not been “threatened
in any way by anyone to cause [him] to plead guilty in accordance
with [the] agreement.”
(Id., ¶¶ 14-15).
This Court held a change of plea hearing on July 31, 2012.
(DE ##514, 968).
When asked whether he was “fully satisfied with
the counsel, representation, and advice given to you in this case
by Mr. Earnst as your attorney?” Gudino replied “yes, Your Honor.”
(DE #968, p. 14).
After Gudino read through paragraphs 7 through
13 of his plea agreement, the Court asked him whether he read it
previously, understood it, agreed with it, and was asking the Court
to approve it.
Gudino answered yes to each of these questions.
(Id., pp. 14-15).
Gudino acknowledged repeatedly that he agreed
with the individual and collective terms of the plea agreement and
confirmed that he wanted to plead guilty under the agreement.
(Id., pp. 14-52).
The Court informed Gudino that for Count One, “the most that
you could get would be life imprisonment, a fine of up to $250,000,
or a combination of both, up to five years of supervised release,
full restitution and a $100 special assessment,” and Defendant
answered that he understood.
(Id., p. 19).
Additionally, the
Court advised Defendant that “[t]he least you could get would be
4
probation, no fine, no supervised release, no restitution, but you
still
would
have
a
$100
special
indicated that he understood.
assessment,”
and
Defendant
(Id., p. 19).
The Court also confirmed that Gudino understood that the Court
would ultimately decide Defendant’s sentence and that neither the
Government’s recommendations nor the Guidelines were binding.
(Id., pp. 21-31).
This included clear notification that the
Government’s recommendation that Gudino be sentenced to a term of
imprisonment of 120 months was not binding on the Court. (Id., pp.
29-30).
The following exchange occurred:
Q: Last nonbinding recommendation that you and
the government are going to make is that
considering the totality of the circumstances
for your involvement in the offense in Count
One,
that
you
should
get
a
term
of
imprisonment of 120 months. Do you understand
that?
A:
Yes, Your Honor.
Q:
You
understand
this
is
recommendation, nothing more.
A:
Yes, Your Honor.
Q:
Who makes the final decision?
A:
You do, Your Honor.
Q:
And you understand that I have the
authority to sentence you up to the
amount of the statute, life imprisonment.
Do you understand that?
A:
Yes, Your Honor.
Q:
Are you in agreement with that?
A:
Yes, I am.
5
only
a
(Id.).
During the hearing, this Court questioned Gudino extensively
about his voluntary waiver of his right to appeal, including the
following excerpts from that colloquy:
Q:
Okay.
Subparagraph 10 talks about appeals.
Mr. Gudino, do you understand that in all
criminal cases a defendant has a right to
appeal his conviction and/or sentence in a
case?
A:
Yes, Your Honor.
Q:
In this case, you have acknowledged that I
have the jurisdiction and authority to
sentence you up to the maximum provided for by
the statute. Remember you and I talked about
that when I told you you were facing up to
life imprisonment, a fine of up to $250,000,
or a combination of both, up to five years of
supervised release, full restitution and a
$100 special assessment.
Do you understand
that?
A:
Yes, Your Honor.
Q:
What you’re doing in this paragraph, Mr.
Gudino, is that you’re giving up all of your
rights to an appeal, both as to the manner in
which you were found guilty or as to the
sentence you might receive. Do you understand
that?
A:
Yes, Your Honor.
Q:
For all practical purposes, you’re giving up
all of your rights to an appeal.
Do you
understand that?
A:
Yes, Your Honor.
Q:
That includes incompetence of counsel except
as it relates to this wavier and/or its
negotiation. Do you understand that?
A:
Yes.
6
Q:
Do you understand that the government is not
giving up any of their rights to an appeal?
A:
Yes, Your Honor.
Q:
Are you sure this is what you want to do, Mr.
Gudino?
A:
Yes, I do, Your Honor.
Q:
You understand that down the road you’re not
going to be able to change your mind?
A:
I’m sure.
Q:
And do you understand that if I sentence you,
you’re not going to be able to talk to Mr.
Earnst and say, that judge went crazy on me, I
want you to go and appeal? You won’t have any
right to an appeal anymore. Do you understand
that?
A:
Yes, Your Honor.
Q:
Did you consult with
making this decision?
A:
Yes, I did, Your Honor.
Q:
Did he answer all of your questions?
A:
Yes, he did.
Q:
Have any questions for the Court?
A:
(Indicating).
your
attorney before
(WHEREUPON, discussion was had off the record between
counsel and defendant.)
BY THE DEFENDANT:
A:
No, I don’t, Your Honor.
BY THE COURT:
Q:
Are you doing this knowingly and voluntarily?
7
A:
Yes, Your Honor.
Q:
And are you asking me to approve it as part of
the plea agreement?
A:
Yes, Your Honor.
(Id., pp. 30-32).
On January 10, 2013, the Court sentenced Gudino.
969).
(DE ##736,
There were two objections to the Guideline calculation set
forth in the Presentence Report (see DE #672).
Defendant objected
to the application of an enhancement for obstruction of justice,
and to the withdrawal of acceptance of responsibility. (Id.). The
Court overruled the objections.
(DE # 969 at 11).
The Government
recommended a sentence of 120 months, as it had agreed to do in the
Plea Agreement.
(Id., pp. 26-27).
This Court, however, sentenced
Gudino to imprisonment for 175 months.
(DE #736).
Additionally,
the Court granted the Government’s motion to dismiss Count Two of
the Third Superseding Indictment. (DE #737). Judgment was entered
on January 14, 2013.
(DE #740).
On January 24, 2013, Gudino filed a notice of appeal.
Gudino
later moved to dismiss the appeal, and the appeal was dismissed.
(DE # 769-1).
Gudino filed the instant motion under section 2255 on May 29,
2013,
setting
forth
several
arguments
why
his
counsel
was
ineffective: (1) he “did not provide counsel during the PSI
interview”; (2) he “failed to explain the consequences of a guilty
plea on my immigration status”; (3) he “failed to hold Government
8
to the plea agreement that was signed and entered on the record”;
(4) he “failed to inquire into my mental state by obtaining a
psychological examination.”
(DE #944).
It is possible Gudino
intended to bring a claim based on limited access to the law
library as well, although he does not make that entirely clear in
his motion.
In response, the Government contends that all of
Gudino’s arguments were waived, and even if they were not waived,
they fail on the merits.
(DE #995).
Gudino was granted a lengthy
extension of time to file his reply brief, but he opted not to file
a reply. (DE #1032).
Therefore, this motion is fully briefed and
ripe for adjudication.
DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for "extraordinary situations."
812, 816 (7th Cir. 1996).
Prewitt v. United States, 83 F.3d
In order to proceed on a habeas corpus
motion pursuant to 28 U.S.C. section 2255, a federal prisoner must
show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.
A
section
2255
Id.
motion
is
recapitulation of a direct appeal.
neither
a
substitute
for
nor
Id.; 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 (7th Cir. 1994).
9
As a
result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.
Additionally, aside from demonstrating
"cause" and "prejudice" from the failure to raise constitutional
errors
on
direct
appeal,
a
section
2255
petitioner
may
alternatively pursue such errors after demonstrating that the
district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice.
McCleese v. United States, 75
F.3d 1174, 1177 (7th Cir. 1996).
In assessing Defendant's motion, the Court is mindful of the
well-settled
principle
that,
when
interpreting
a
pro
se
petitioner's complaint or section 2255 motion, district courts have
a "special responsibility" to construe such pleadings liberally.
Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.
1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a "pro se
complaint, 'however inartfully pleaded' must be held to 'less
stringent standards than formal pleadings drafted by lawyers'")
(quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279
F.3d 742, 746 (9th Cir. 2002) ("pro se habeas petitioners are to be
afforded 'the benefit of any doubt'") (quoting Bretz v. Kelman, 773
10
F.2d 1026, 1027 n.1 (9th Cir. 1985)).
In other words:
The mandated liberal construction afforded to
pro se pleadings "means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements."
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
On the other hand, "a district court should not 'assume the role of
advocate for the pro se litigant' and may 'not rewrite a petition
to include claims that were never presented.'"
Id.
Here, the
Court assessed Gudino’s claims with these guidelines in mind.
Waiver
The Seventh Circuit has recognized the validity of plea
agreement waivers and will enforce the waiver unless there is a
claim that the waiver was entered into involuntarily or that the
waiver was a result of the ineffective assistance of counsel during
the negotiation of the waiver. In Jones v. United States, 167 F.3d
1142, 1145 (7th Cir. 1999), the Seventh Circuit held that only two
claims could be raised on a section 2255 motion by an individual
who waived his right to appeal:
(1) the defendant received
ineffective assistance of counsel in negotiating the waiver; or (2)
that the waiver was not knowingly and voluntarily made.
11
Jones
stated that courts should be:
[m]indful of the limited reach of this
holding, we reiterate that waivers are
enforceable as a general rule; the right to
mount a collateral attack pursuant to § 2255
survives only with respect to those discrete
claims
which
relate
directly
to
the
negotiation of the waiver.
Id. at 1145.
In Mason v. United States, 211 F.3d 1065, 1069 (7th
Cir. 2000), the Seventh Circuit applied its holding in Jones to bar
an ineffective assistance of counsel claim that related only to the
petitioner's performance with respect to sentencing.
The Court
found that "[b]ecause the challenge has nothing to do with the
issue of a deficient negotiation of the waiver, [petitioner] has
waived
his
right
to
seek
post-conviction
relief."
Id.
Additionally, the Court stated that the following analysis should
be considered in determining whether a claim has been waived:
can the petitioner establish that the waiver
was not knowingly or voluntarily made, and/or
can he demonstrate ineffective assistance of
counsel with respect to the negotiation of the
waiver?
Id.
It is undisputed that in his plea agreement, Gudino waived his
right to appeal or contest his conviction and sentence “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 28, United States Code, Section 2255.”
(DE #495, ¶ 10).
12
This
Court
is
satisfied
that
Defendant
knowingly
and
intelligently waived his right to seek post-conviction relief.
See, e.g., United States v. Davis, 348 F. Supp. 2d 964, 966 (N.D.
Ind. 2004) (finding, under a similar section 2255 waiver, that
defendant knowingly and intelligently waived his right to file a
section 2255 motion).
To the extent that Defendant now argues to
the contrary, “[s]elf-serving statements offered after the plea
hearing generally fall in the face of contradictory voluntary
statements made by the defendant during a plea hearing - the latter
are presumed to be true.”
United States v. Mosley, No.
93-1829,
1994 WL 503016, at *3 (7th Cir. Sept. 14, 1994) (citing, inter
alia, United States v. Scott, 929 F.2d 313, 315 (7th Cir. 1991)
(“To allow [defendant] to withdraw his plea because of secret
expectations
that
he
harbored
in
the
face
of
his
directly
contradictory sworn testimony would undermine the strong societal
interest in the finality of guilty pleas.”)).
As set forth by the
Court earlier in this opinion, Defendant repeatedly testified
during his hearing that he was satisfied with his counsel’s
performance, that he was knowingly and voluntarily pleading guilty,
and that he understood the charges against him and the possible
sentence he was facing.
As such, the Court is satisfied that he
knowingly and intelligently entered into the plea agreement.
Furthermore, none of Gudino’s claims of ineffective assistance
relate
directly
to
the
waiver
or
its
negotiation.
The
PSI
interview that Gudino complains about happened well after the
13
waiver was negotiated.
Any failure to explain the consequences of
a guilty plea on immigration status are unrelated to the waiver of
appeal rights.
See United States v. Clarke, No. 11 C 7404, 2012 WL
588708 *4 (N.D. Ill. Feb. 16, 2012 aff’d 703 F.3d 1098 (7th Cir.
2013)(holding that a similar claim was waived and that petitioner
had made no allegations related to the negotiation of her waiver).
Any failure to hold the Government to the plea agreement is not
related to the waiver or its negotiation.
And, any failure to
investigate Gudino’s mental health and utilize that information to
argue that it provided a mitigating consideration for sentencing
has nothing to do with the waiver or its negotiation.
If Gudino
intended to make a claim based on limited access to a law library,
as the Government has suggested, that claim too is unrelated to the
waiver or its negotiation.
Accordingly, each and every one of
Gudino’s arguments are waived.
Gudino’s Ineffective Assistance of Counsel Claims Fail on the
Merits
Even if Gudino’s arguments were not waived, they would fail on
the merits.
governed
by
Claims of ineffective assistance of counsel are
the
2-pronged
test
Washington, 466 U.S. 668 (1984).
set
forth
in
Strickland
v.
To prevail on an ineffective
assistance of counsel claim, the Defendant must first show the
specific acts or omissions of his attorney "fell below an objective
14
standard of reasonableness" and were "outside the wide range of
professionally competent assistance."
Barker v. United States, 7
F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 688,
690); see also Hardamon v. United States, 319 F.3d 943, 948 (7th
Cir. 2003); Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir.
2001).
The second Strickland prong requires defendant to show
prejudice, which entails showing by "a reasonable probability that,
but
for
counsel's
unprofessional
errors,
proceeding would have been different."
the
result
of
the
Strickland, 466 U.S. at
694. Regarding the deficient-performance prong, great deference is
given to counsel's performance, and the defendant has a heavy
burden to overcome the strong presumption of effective performance.
Strickland, 466 U.S. at 690; Coleman v. United States, 318 F.3d
754, 758 (7th Cir. 2003) (citation omitted).
A defendant must
establish specific acts or admissions that fall below professional
norms.
Strickland, 466 U.S. at 690.
If one prong is not
satisfied, it is unnecessary to reach the merits of the second
prong.
The
Id. at 697.
Seventh
Circuit
has
held
that
“[o]nly
those
habeas
petitioners who can prove under Strickland that they have been
denied a fair trial by the gross incompetence of their attorneys
will be granted the writ.”
(7th Cir. 2005).
Canaan v. McBride, 395 F.3d 376, 385-86
Additionally, trial counsel “is entitled to a
‘strong presumption’ that his performance fell ‘within the range of
reasonable professional assistance’ and will not be judged with the
15
benefit of hindsight.’”
Almonacid v. United States, 476 F.3d 518,
521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 689).
Gudino’s first claim of ineffective assistance of counsel is
based on a failure to provide counsel during the PSI interview.
Gudino supports his claim as follows:
[T]he attorney was ineffective because he knew
or should have known that I was not born in
the United States. But he failed to stop me
or inform me of the consequences of not being
honest with the probation officer even though
he was present when the probation officer
asked where I was born.
(DE #944, p. 4).
The Government has produced evidence that the
performance of Attorney Earnst was not deficient.
In a sworn
declaration, Attorney Earnst represents that his client told him
repeatedly that he was in the United States legally.
(DE #995-1).
Furthermore, he was present at the interview and advised Gudino of
the consequences of failing to be honest with the probation
officer.
(Id.).
Gudino chose not to file a reply brief and has
offered no evidence whatsoever in rebuttal.
Accordingly, this
claim is without merit.
Next, Gudino argues that his counsel was ineffective for
failing to advise him of the consequences of a guilty plea on his
immigration status.
More specifically, he alleges that:
He did not properly explain the plea agreement
and the deportation issues to me before I
entered into the plea agreement. All he told
me is if I didn’t take this plea we will have
to go to trial.
(DE #944 at 5).
16
In Padilla v. Kentucky, the Court held that “counsel must
inform [a] client whether his plea carries a risk of deportation.”
130 S.Ct. 1473, 1486 (2010).
But, here, Gudino lied to all parties
involved about his immigration status, including his attorney. (DE
#995-1). At his change of plea hearing, Gudino was advised that he
was under oath and if he answered any questions falsely, he could
be prosecuted for perjury.
(DE #968 at 11).
On that very same
page of the transcript, the record shows that Gudino gave a social
security number which he later conceded was false. (Id.; DE #724).
Gudino was specifically asked if he was a citizen of the United
States, and he said “Yes, Your Honor.”
(DE #968 at 12).
Likewise,
he told employees of U.S. Probation and Pretrial Services at both
his bond interview and his presentence interview that he was born
in Chicago, Illinois on August 26, 1981.
(DE #671 at 14).
Given that his own lies, now admitted to, contributed to the
failure to be properly advised under Padilla, it is not clear he
can show that counsel was ineffective.
must also show prejudice.
But, even if he could, he
In circumstances such as this, a
petitioner must show the Court that “a decision to reject the plea
bargain
would
have
been
rational
Padilla, 130 S.Ct. at 1485.
under
the
circumstances.”
A petitioner’s subjective assertion
that he would have insisted on a trial is not enough, but here,
Gudino has not even asserted that he would have went to trial if he
had
known
the
immigration
consequences
Accordingly, this claim fails on the merits.
17
of
a
guilty
plea.
Gudino also argues that counsel was ineffective because he did
not hold the Government to the terms of the plea agreement.
More
specifically:
The attorney was ineffective because he
allowed the government to change the plea
agreement
to
a
less
advantageous
plea
agreement after the first plea was signed and
entered on the record, see dkt# 495.
(DE #944 at 7).
First, the only plea agreement on the record with
regard to Gudino is the one he references above, filed as docket
entry number 495.
And, despite Gudino’s perjury, the Government
still recommended a sentence of 120 months:
I realize that the Court is correct in taking
away his acceptance of responsibility and in
giving him the points for obstruction.
It
seems to me –I mean, legally, it’s correct. I
believe that was sort of an overly harsh
result in this case. And as Mr. Earnst said,
it’s not –I don’t think it’s fair to treat him
the same as someone that went to trial. Lying
to probation about immigration status isn’t
the same as putting the government through a - and the Court through a lengthy trial.
Mr. Cooley and I have had this case for a
number of years. We have a good sense of the
criminal conduct of each and every one of the
defendants. We discussed this one at length
and felt that 120 months is a just sentence
for this defendant based upon his criminal
history and his conduct in this case, and I
would ask that you honor the plea agreement.
And I still, even despite lying to probation,
still ask the Court that they sentence him to
120 months.
(DE #969 at 27).
failure
to
abide
Gudino’s claim fails: he has pointed to no
by
the
plea
agreement
Government.
18
on
the
part
of
the
Gudino also argues that his counsel was ineffective in that he
failed
to
inquire
into
his
mental
state
by
obtaining
a
psychological examination. Gudino believes such an exam would have
documented mental health problems that would have justified a
lesser sentence.
Other than Gudino’s cursory and vague assertion
that he has “documented mental health problems,” he has offered
nothing whatsoever that would indicate a mental health exam would
have been appropriate, much less necessary, for counsel to be
deemed effective.
Gudino is required to reasonably competent
assistance of counsel, not perfect assistance.
Harrington v.
Richter, 562 U.S. 86, 131 S.Ct. 770, 791 (2011).
Even if, with
hindsight, a mental exam may have been valuable, to conclude that
the failure to obtain one is prejudicial error would be speculative
at best on the record before this Court.
Gudino mentions several times in his motion that he has had
limited access to a law library while incarcerated.
He does not
state this as a separate claim, but the Government has treated it
as such so the Court will address the claim briefly.
There is no
federal constitutional right to browse the library; indeed, there
is no “abstract, freestanding right to a law library . . ..” Lewis
v. Casey, 518 U.S. 343, 351 (1996).
If construed as a claim that
he was denied access to the Courts, Gudino would need to show that
he suffered actual injury.
Lewis v. Casey, 518 U.S. 343, 351
(1996) (holding that Bounds v. Smith, 430 U.S. 817 (1977), did not
19
eliminate
the
actual-injury
requirement
as
a
constitutional
prerequisite to a prisoner asserting lack of access to the courts).
Gudino’s motion does not include such allegations.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”
when
it
enters
a
final
order
adverse
to
the
A certificate of appealability may issue only if the
applicant “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
were
adequate
to
deserve
encouragement
to
proceed
further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks and citation omitted).
For the reasons set forth above, Gudino has not stated any
grounds for relief under section 2255.
for
a
determination
decision
debatable
that
or
reasonable
incorrect
encouragement to proceed further.
appealability will not be issued.
20
or
The Court finds no basis
jurists
that
the
would
find
issues
this
deserve
Therefore, a certificate of
CONCLUSION
For the aforementioned reasons, Defendant’s section 2255
motion is DENIED.
PREJUDICE.
The Clerk is ORDERED to DISMISS this case WITH
Further, this Court declines to issue Defendant a
certificate of appealability.
The Clerk is ORDERED to distribute
a copy of this order to Antonio Gudino, #11907-027, MC Creary USP,
US Penitentiary, Inmate Mail/Parcels, P.O. Box 3000, Pine Knot, KY
42635, or to such other more current address that may be on file
for the Petitioner.
DATED: December 16, 2014
/s/ RUDY LOZANO, Judge
United States District Court
21
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