Guerrero v. USA
Filing
1
OPINION AND ORDER: Defendants section 2255 motion is DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. Further, this Court declines to issue Defendant a certificate of appealability. Signed by Judge Rudy Lozano on 6/22/2015. (cc: Guerrero)(rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALEX GUERRERO
Defendant.
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NO. 2:10-CR-109
(2:14-CV-11)
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 Alex Guerrero on January 10, 201 (DE
#1108).
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 Alex Guerrero, #11905-027, Allenwood FCI - 1000- Low, Federal
Correctional Institution, Inmate Mail/Parcels, P.O. Box 1000, White
Deer, PA 17887, 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, Alex Guerrero and twenty other defendants.1 (DE
#230).
Guerrero was charged in Counts One, Two, Fourteen, and
Fifteen of the 15-count Third Superseding Indictment.
Count One
charged Guerrero and others with conspiracy to participate in
racketeering activity in violation of 18 U.S.C. § 1962.
Count Two
charged Guerrero and others with conspiracy to possess with intent
to distribute and distribute cocaine and marijuana in violation of
21 U.S.C. § 846. Count Fourteen charged Guerrero with interference
with commerce by threats or violence, in violation of 18 U.S.C. §
1951.
Count Fifteen charged Guerrero with using and carrying a
firearm during and in relation to crimes of violence and drug
trafficking, in violation of Title 18 U.S.C. § 924(c)(1)(A).
On July 26, 2012, Guerrero entered into a plea agreement with
the Government, and the agreement was filed with this Court.
#501).
In it, Guerrero agreed to plead guilty to Count One, Two,
Fourteen, and Fifteen of the Third Superseding Indictment.
¶ 7).
(DE
(Id.,
The Government and Guerrero also reached certain agreements
that were not binding on the Court.
(Id., ¶ 8).
Specifically,
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.
(Id.,
¶
9(a)).
1
They
also
agreed
that
the
The case had a total of 23 defendants, but two plead guilty prior to
the filing of the Third Superseding Indictment.
2
Government would recommend a sentence equal to the minimum of the
applicable guideline range.
(Id., ¶ 8(b)).
They further agreed
that Defendant is responsible for 150 kilograms or more of a
mixture and substance containing a detectable amount of cocaine;
that the victim of Count 14 was physically restrained, that
Defendant abused a position of public trust that significantly
facilitated the commission or concealment of the offense, and that
Defendant used body armor during the commission of the offense.
(Id., ¶ 8(c)-(f)).
Lastly, they agreed that, considering the
totality of the circumstances, “a just and appropriate sentence as
to a term of imprisonment is a period of 228 months.” (Id., ¶ 9).
Further, Defendant agreed that his attorney had “done all that
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., ¶¶ 15-16).
This Court held a change of plea hearing on August 2, 2012.
(DE ##516, 1114).
When asked whether he was “fully satisfied with
the counsel, representation, and advice given to you in this case
by Mr. Milner as your attorney?” Guerrero replied “yes, Your
Honor.” (DE #1114 at 8-9). After Guerrero read through paragraphs
7 through 14 of his plea agreement, the Court asked him whether he
3
read it previously, understood it, agreed with it, and was asking
the Court to approve it.
questions.
Guerrero answered yes to each of these
(Id. at 9-10).
Guerrero 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.
The
(Id. at 9-65).
Court
informed
Guerrero
of
the
maximum
and
minimum
penalties for each of the four counts he was pleading guilty to.
(Id. at 14-21). Guerrero indicated that he understood the possible
sentences he could receive.
(Id.).
The Court also confirmed that Guerrero understood that the
Court would ultimately decide his sentence and that neither the
Government’s recommendations nor the Guidelines were binding. (Id.
at 26-31).
This included clear notification that the Government’s
recommendation that Guerrero be sentenced to a term of imprisonment
of 228 months was not binding on the Court.
(Id. at 30-31).
The following exchange occurred:
Q: Finally, under subsection (g), you and the
government are in agreement pursuant to Title
18, United States Code, Section 3553, which
are factors that the Court has to consider,
and with regards to cooperation that you’re
going to have in paragraphs 10 and 11, that a
proper sentence in this case would be 228
months; is that correct?
A:
Yes, Your Honor.
Q:
Mr. Guerrero, do you understand that this
is only a recommendation? Who makes the
final decision?
4
A:
You do, Your Honor.
Q:
And you understand that I may agree with
all of you. I may not. I may think your
sentence should be higher or lower. Do
you understand that?
A:
Yes, Your Honor.
Q:
Are you in agreement with that?
A:
Yes, Your Honor.
(Id. at 30-31).
The Court asked Guerrero to explain why he was guilty of each
Count.
(Id. at 46).
He indicated that the crimes took place
between 2004 and 2006 in both Illinois and Indiana.
47).
(Id. at 46-
Guerrero was a Chicago police officer at the time and was
taking directions from Sisto Bernal, a member of the Latin Kings.
(Id. at 47). More specifically, he “just took directions regarding
these robberies.”
(Id. at 48).
He admitted he, along with his
police partner, “committed the robberies at his [Sisto Bernal’s]
direction.”
guns.
(Id. at 50).
(Id.).
He admitted to robbing drugs, money and
These were given to Sisto Bernal.
(Id.).
He
further admitted that these robberies were done in order to make
the efforts and the activities of the Latin Kings successful. (Id.
at 53).
With regard to Count 14, Guerrero testified that “[i]t was a
robbery that my partner and I committed” in December of 2006.
(Id.).
He robbed James Walsh, also known as Jim Bob.
(Id. at 54).
He stated that “My partner and I, with our police uniforms, went
5
into his property.”
(Id.).
They then took his possessions.
He
further admitted that he had a weapon and that he used the uniform
and weapon in order to accomplish the robbery.
(Id. at 54).
He
indicated that the stolen property was turned over to Sisto Bernal.
(Id. at 55).
The Court also asked counsel for the Government to summarize
the facts that they were prepared to prove at trial with regard to
each count that Guerrero intended to plead guilty.
(Id. at 57).
The following summary was provided:
As to Count One, the RICO conspiracy, if
the government proceeded to trial, we would
prove beyond a reasonable doubt that the Latin
Kings, including its associates, constituted
an enterprise as defined in the statute, a
group of individuals associated in fact. The
Latin
Kings
constituted
an
ongoing
organization whose members function as a
continuing unit for the common purpose of
achieving the objectives of the enterprise.
The enterprise was engaged in and its
activities affected interstate commerce.
From
roughly
2004
to
2006,
this
defendant, together with his Chicago Police
Department partner, Antonio Martinez, and
Sisto Bernal, who was one of the leaders of
the Latin Kings, and others knowingly and
intentionally
conspired
to
conduct
and
participate in the conduct of the affairs of
the Latin Kings through a pattern of
racketeering activity, here consisting of
multiple acts of Hobbs Act robberies and drug
trafficking.
More specifically, during the course of
the conspiracy, in the same time period, 20042006, this defendant, Mr. Guerrero, was
employed as a Chicago Police Department
officer on the south side of Chicago. He was
assigned to a tactical unit.
He would not
wear a police uniform. He would wear civilian
clothes or tactical gear and carry his
6
department issued gun, his badge and a
bulletproof vest and clothing that was marked
with the Chicago Police Department on it.
During this time period, his co-defendant,
Antonio Martinez, was his partner.
During the course of the conspiracy, this
defendant and his partner Martinez agreed to
commit and then did commit multiple Hobbs Act
robberies, sometimes referred to as drug rips,
on the street on behalf of Sisto Bernal, one
of the leaders of the Latin Kings.
They
committed these robberies while on the clock
while
working
for
the
Chicago
Police
Department during their duty shifts.
They
also did it off duty. They wore their badges
and vests and department-issued firearms,
drove their unmarked Chicago Police Department
cars.
Those robberies occurred both in
Chicago and the Northern District of Indiana.
In this district they were primarily in
Hammond and East Chicago.
During the course of these robberies,
this defendant and his partner pretended that
they were doing legitimate traffic stops on
duty and search warrants and searches on duty
and in their capacity as police officers, but
what they were really doing was looking for
drugs, guns and money to turn over to Sisto
Bernal and the Latin Kings back in Chicago.
These robberies include, but aren’t limited
to, an event between 2004 and 2006 where this
defendant and his partner and Sisto Bernal and
another individual drove from Chicago to a
warehouse around Rockford, Illinois, that was
being used to store marijuana.
There, this
defendant and his partner, they were in
tactical gear with their badges and firearms
marked as Chicago police officers. At Sisto
Bernal’s direction, they broke into the
warehouse and stole a large amount of
marijuana. They turned it over to Bernal and
were paid approximately $2,000 each for this.
There was another event between 2004 and
2006
where
Sisto
Bernal
directed
this
defendant and his partner to make a traffic
stop on a female driver who was transporting
marijuana from Mexico up to Chicago.
They
were in their Chicago Police Department car.
They had their badges on, their department7
issued firearms. They did this traffic stop
posing or pretending like they were doing a
legitimate police traffic stop. They released
the female driver.
They held on to her
minivan. They tore it up and located between
90 and 100 pounds of marijuana, which they
turned over to Sisto Bernal.
During the same time period, 2004 to
2006, Sisto Bernal directed this defendant and
his partner to the residence of a drug
trafficker in East Chicago, Indiana, in the
Northern District of Indiana, obviously
outside of their jurisdiction as Chicago
police officers. Again, under the guise of a
legitimate police investigation, they posed as
police officers. They had their badges, their
guns, marked as Chicago police officers. And
they took between $20,000 and $25,000 of drug
money and turned it over to Sisto Bernal, and
they were paid 3 to $4,000 each for this.
During
all
these
events
that
I’m
discussing today, there were never any
arrests, no paperwork was ever turned in and
no evidence was ever turned in to the Chicago
Police Department.
There was another event between 2004 and
2006 in the City of Chicago where these two
defendants were sent by Sisto Bernal.
They
were sent by a man, Hiluterio Chaves, also
known as Zeus or Tails. He was a Latin King.
They did another Hobbs Act robbery, this time,
again, they were in Chicago uniforms –- strike
that - - Chicago police tactical gear, wearing
their badges, their guns, marked as police
officers. Again, they were under the guise of
a legitimate police investigation. This time
they took a Latin King, Hiluterio Chavez, with
them who posed as a police officer between the
course of this. And they stole between 20 and
$40,000 in drug proceeds and turned it over to
Sisto Bernal. Each were paid 5 to $6,000 for
this.
In October of 2005, there was another
search they did, another drug rip they did
here in Hammond, Indiana, not far from this
courthouse, on Harrison Avenue. There, during
that search, they were sent by Sisto Bernal
again, driving a police car, wearing badges
and their department-issued guns and marked as
8
police officers.
They took two Glock brand
pistols that the resident legally owned and
turned those over to Sisto Bernal.
One of
those guns turned up during a traffic stop in
Nebraska a time later.
Then, in December 2006, there was another
Hobbs Act robbery they conducted. That was at
the residence of James Walsh, also known as
Jim Bob.
He was a leader of the Latin
Dragons. He was one of the individuals killed
at the Sopranos Restaurant in Griffith.
That’s also part of the indictment.
There,
again, they are driving a tactical car. They
have badges.
They have their vests.
They
have their department-issued guns. They went
inside. They tied people up, and they stole
firearms and some currency and some narcotics
and turned it over to Sisto Bernal.
During all these events, he and his
partner are armed. During all these events,
they abused a position of power. During some
of these events, people were physically
restrained and tied up, and they wore their
tactical ballistic vests during all these.
Turning
to
Count
Two,
the
drug
conspiracy, it is basically the same set of
facts.
They
were
stealing
drugs,
predominately cocaine, and turning it over to
Sisto Bernal, the leader - - or one of the
leaders of the Latin Kings. Through Pinkerton
liability, they are liable for over 150 kilos
or more of cocaine and a thousand kilos or
more of marijuana, and these amounts were
foreseeable to this defendant.
Turning to Count 14 and 15, it’s the same
set of facts that I mentioned earlier,
discussing
the
robbery,
the
Hobbs
Act
robberies in December of 2006. There was a
residence here in Hammond of James Walsh.
It’s the same facts that I discussed above.
Again, they’re in uniform with guns, badges,
and they did one of these robberies at this
residence and took the things that I mentioned
before.
In Count 15 – well, strike that.
Moving backwards, as far as interstate
commerce, they took narcotics that would have
traveled in interstate commerce.
They took
drugs which would have traveled and affected
9
interstate commerce.
Further than that, as I mentioned, Mr.
Walsh was a leader of the Latin Dragons. That
is an organization that operates both in
Indiana and in Illinois, and they are an
organization
that
affected
interstate
commerce.
As far as the 924(c) count in Count 15,
that’s the same set of facts.
He had a
firearm, his department-issued firearm while
doing that robbery.
That’s all.
(Id. at 57-63).
After a few follow up questions regarding the interstate
commerce requirement, the following exchange occurred between the
Court and Mr. Guerrero:
Q:
A:
Q:
A:
Q:
A:
Mr. Guerrero, did you listen and pay
close attention to the government’s
summary of facts constituting the crime
charged?
Yes, Your Honor.
Do you agree with the government’s
summary of facts?
Yes, Your Honor.
Any part of it you disagree with?
No, Your Honor.
(Id. at 64).
Following this exchange, counsel for both the Defendant and
the Government stated that they were satisfied that the Defendant’s
plea was made knowingly and voluntarily and that it was supported
by an independent basis in fact containing each of the essential
elements of the offenses.
(Id. at 64).
Guerrero then pled guilty
to each of the four counts of the Third Superseding Indictment.
(Id. at 64-65).
Based on Guerrero’s responses at the change of
plea hearing, this Court found:
10
that the defendant, Alex Guerrero, is fully
competent and capable of entering an informed
plea and that his plea of guilty to the
charges contained in Counts 1, 2, 14, and 15
of the third superseding indictment is a
knowing and voluntary plea supported by an
independent basis in fact containing each of
the essential elements of the offenses.
(Id. at 65).
On January 11, 2013, the Court sentenced Guerrero. (DE #739).
There were no objections to the Guideline calculation set forth in
the Presentence Report (see
DE #700).
This Court sentenced
Guerrero to a total term of imprisonment of 228 months. (DE #739).
This consisted of 168 months for each of Counts 1, 2 and 14, and 60
months for Count 15, to be served consecutively.
(Id.).
This is
the length of imprisonment that the parties agreed was a just and
appropriate sentence in their plea agreement.
(DE #501 at 5).
Judgment was entered on January 15, 2013. (DE #743). Guerrero did
not file a notice of appeal.
Guerrero filed the instant motion under section 2255 on
January 10, 2014, setting forth several arguments: (1) “Denial of
effective Assistance of counsel”; (2)”Conviction obtained by plea
of guilty which was unlawfully induced or not made voluntarily or
with understanding of the nature of the charge and the consequences
of the plea”; (3) “Conviction obtained by the unconstitutional
failure of the prosecution to disclose to the defendant evidence
favorable to the defendant”; (4) “My constitutional and civil
rights were violated.”
(DE #1108).
11
The Government filed a
response to the instant motion on March 31, 2014 (DE # 1122).
Thereafter, Guerrero obtained counsel and counsel filed a reply on
his behalf on July 28, 2014. (DE ## 1134, 1144).
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).
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.
12
As a
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
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."
13
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, while
Guerrero did have counsel at the time his reply was filed, the
petition was filed pro se; therefore, the Court has assessed
Guerrero’s claims with these guidelines in mind.
Guerrero’s Claims are Without Merit
Claims of ineffective assistance of counsel are governed by
the 2-pronged test set forth in Strickland v. Washington, 466 U.S.
668 (1984).
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
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, the result of the proceeding would
have been different."
Strickland, 466 U.S. at 694.
14
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 fell below professional norms.
U.S. at 690.
If one prong is not satisfied, it is unnecessary to
reach the merits of the second prong.
The
Strickland, 466
Seventh
Circuit
has
held
Id. at 697.
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
benefit of hindsight.’”
Almonacid v. United States, 476 F.3d 518,
521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 689).
Guerrero’s claim of ineffective assistance of counsel is
difficult to understand.
He states that:
My attorney stated to me after reviewing my
case that I had committed no crime, my only
connection to this case was through my Chicago
Illinois
police
patrol
partner
Antonio
Martinez who had a connection with the Latin
King street gang.
At no time did Antonio
Martinez alert me to any illegal activities.
My attorney led me to believe that after
investigating this case I had nothing to worry
about that I would be cleared.
15
(DE #1108 at 5).
Although it is not entirely clear how he believes
his counsel was ineffective, what is clear is that Guerrero
directly contradicted this claim at his change of plea hearing. He
repeatedly admitted his guilt, providing many details, as noted
above.
“Because of the great weight we place on these in-court
statements,
we
credit
them
over
[defendant’s]
later
claims.”
United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999).
The Court will not allow Guerrero to rewrite history in order to
undercut the provisions to which he willingly agreed.
Id. (citing
United States v. Byrd, 669 F. Supp. 861 (N.D. Ill. 1987)).
See
also United States v. Chavers, 515 F.3d 722, 725 (7th Cir. 2008)
(in the context of a defendant’s attempt to withdraw his guilty
plea, subsequent “bare protestations of innocence” that contradict
his sworn testimony made during the plea hearing are insufficient
to do so); United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)
(representations made by the defendant during a change of plea
hearing are “entitled to a presumption of verity.”).2
As such,
Guerrero’s claim that his counsel was ineffective must fail.
2
Furthermore, “[w]hen a district court conducts a Rule 11 colloquy, it
is not putting on a show for the defendant, the public, or anybody else. The
purpose of a Rule 11 colloquy is to expose coercion or mistake, and the
district judge must be able to rely on the defendant's sworn testimony at that
hearing. Because the court takes a criminal defendant's rights at a
change-of-plea hearing very seriously, it is reasonable to expect, and demand,
that the criminal defendant do so as well. For that reason, a defendant is
normally bound by the representations he makes to a court during the
colloquy.” Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010)
(internal quotation marks and citations omitted).
16
Next, Guerrero argues that his “[c]onviction [was] obtained by
plea of guilty which was unlawfully induced or not made voluntarily
or
with
understanding
of
the
consequences of the plea.”
nature
of
the
charge
(DE #1108 at 4).
and
the
He explains as
follows:
I plead guilty because my attorney told me
that there was over whelming [sic] evidence
against me including, a gun, which was the
firearm that I carry as a part of my duty as a
Police Officer not to use as a part of any
illegal
activities,
alleged
phone
conversations that led to Mexico that the
government claimed were illegal activities.
These phone calls were my wife’s relatives
whom she call [sic] periodically to check [on]
their welfare. I had no knowledge of these
phone calls.
(Id.).
Again, Guerrero’s claim that his police issued firearm was not
used in any illegal activity is directly contrary to his testimony
at his change of plea hearing.
He has not presented any reason for
this Court to credit his current version of the facts over his
prior sworn testimony.
At the change of plea hearing, this Court,
in agreement with counsel for the Defendant and the Government,
found that Guerrero’s plea of guilty was made knowingly and
voluntarily.
unpersuasive.
His
current
statements
to
the
contrary
are
As a result, this claim also fails.
Guerrero also argues that his “[c]onviction [was] obtained by
the unconstitutional failure of the prosecution to disclose to the
defendant evidence favorable to the defendant.” (DE #1108 at 4).
He provides only the following in support of this claim:
17
I was told by my attorney that the prosecution
delayed giving my attorney information that
would [have] proven my innocence and or was
favorable to my case. Please refer to my PCR.
Please see attachment.
(Id.).
It is not clear what portion of the PCR (presumably the Presentence Investigation Report) he thinks supports this claim.
The
attachment he referenced is simply the sentencing memorandum filed
by his counsel. (DE # 734). This memorandum describes Guerrero as
a “follower” but in no way denies that Guerrero was knowingly
involved in the crimes to which he pled guilty. To date, no
evidence has been produced whatsoever that would prove Guerrero’s
innocence.
evidence
Even now, Guerrero does not tell the Court what
was
allegedly
produced
late,
or
allegedly would have proven his innocence.
not enough.
how
that
evidence
Vague assertions are
Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th
Cir. 1992)(noting that, if the allegations of a section 2255 motion
are vague or conclusory, the motion may be denied without a
hearing).
This claim fails for vagueness.
Lastly, Guerrero argues that his “constitutional and civil
rights were violated.”
He further explains as follows:
Before I could get to trial, I was accused in
the eye of the media who was bias and
judgmental against me for being a Chicago
Police Officer who are held to a higher
standard. At the time of my court appearance
I was already judged guilty, my name was
slandered,
my
association
with
Antonio
Martinez made me look guilty. My police union
they ask me to sign papers that I thought were
18
to help me receive representation they turned
out to be dismissal papers. I was told that I
was no longer a part of them. I have fellow
officers in the Chicago Police Department that
want to come forward but could not for fear of
losing their jobs.
(DE
#1108
at
5).
First
off,
Guerrero’s
alleged
wrongful
termination by the Chicago Police Department is not a basis for
relief under 28 U.S.C. section 2255.
And, even if his assertion
that the public viewed him as guilty before trial is true, that too
provides no basis for relief under section 2255.
Guerrero is not
arguing that any jury was unfairly biased against him - just that
public opinion was biased against him.
proceeded to a jury trial.
include
any
facts
which
Indeed, this case never
As a result, this claim does not
would
support
his
claim
that
his
constitutional and civil rights were violated.
While this resolves each of Guerrero’s claims, one additional
matter must be addressed.
It was noted earlier that Guerrero
obtained counsel after his section 2255 motion was filed and that
the reply brief was filed by counsel.
According to counsel:
[Guerrero’s] plea was primarily based upon
speculation and careless recommendations from
his trial counsel. Most significant was the
representation by counsel that Guerrero could
possibly face life in prison if he lost at
trial.
(DE #1144 at 2-3).
According to counsel, Guerrero’s plea is the
result of this “misinformation.”
(Id. at 3).
What Guerrero’s
section 2255 motion actually says is not that his counsel told him
19
that he could face life in prison if he lost at trial, but the
reason he did not file an appeal was that:
I had no knowledge of what appeal to file. I
was told by my attorney that if I filed an
appeal I would receive a life sentence. I was
told that there would be repercussions.
My
attorney would not turn over all of the
documents to my case so that I can properly
file for my appeals.
(DE # 1108 at 5).
Putting aside counsel’s confusion over the
context in which Guerrero’s trial counsel allegedly told him he
would be facing a life sentence, that was indeed true: Guerrero was
advised correctly by the Court that he was facing a possible life
term of imprisonment on Counts One and Two (DE #1114 at 14 -16).
And, even if Guerrero intended his explanation of why he did not
raise certain issues previously to be a separate claim for relief which is doubtful - the claim would fail.
Guerrero did not allege
that he directed his counsel to appeal and counsel refused. Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000).
There are no allegations
that his wishes were disregarded. In the absence of direction from
a client to file an appeal, a lawyer remains obligated to consult
with his client regarding “the advantages and disadvantages of
taking an appeal” and make a “reasonable effort to discover the
[client’s] wishes.”
Id. at 478.
Where an attorney consulted with
the client regarding a possible appeal, the attorney can only be
deemed professionally deficient if he then fails to follow the
client’s express instructions regarding the possible appeal.
20
Id.
Here, Guerrero’s section 2255 motion reveals that some discussion
about whether an appeal was warranted took place between Guerrero
and trial counsel, however imperfect they may have been, and fails
to assert that Guerrero then directed that an appeal be filed.
Guerrero has not demonstrated his counsel was ineffective by
advising him not to appeal or failing to file an appeal on his
behalf.
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, Guerrero has not stated any
grounds for relief under section 2255.
for
a
determination
that
reasonable
21
The Court finds no basis
jurists
would
find
this
decision
debatable
or
incorrect
encouragement to proceed further.
or
that
the
issues
deserve
Therefore, a certificate of
appealability will not be issued.
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 Alex Guerrero, #11905-027, Allenwood FCI 1000- Low, Federal Correctional Institution, Inmate Mail/Parcels,
P.O. Box 1000, White Deer, PA 17887, or to such other more current
address that may be on file for the Petitioner.
DATED: June 22, 2015
/s/ RUDY LOZANO, Judge
United States District Court
22
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