Hernandez-Cervantes v. USA
Filing
1
OPINION AND ORDER denying Motion for Time Reduction by Inmate in Federal Custody Under 28 U.S.C. § 2255. Further, the court DENIES the issuance of a certificate of appealability. The clerk shall ENTER FINAL JUDGMENT dismissing civil cause initiated by the § 2255 motion. Signed by Senior Judge James T Moody on 10/16/14. cc: Hernandez-Cervantes(mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff
)
)
)
v.
)
)
DAVID HERNANDEZ-CERVANTES, )
Defendant
)
No. 2:10 CR 168
(No. 2:14 CV 378)
OPINION AND ORDER
Before the court are three filings from defendant David Hernandez-Cervantes
(hereinafter, “Defendant/Movant”): 1) “Motion of Sentence Relief Under the Federal
Prison Bureau Non-Violent Offender Relief Act of 2003,” (DE #62); 2) “Motion for Time
Reduction by Inmate in Federal Custody Under 28 U.S.C. § 2255,” (DE #65); and 3) a
request for the court reporter to “prepare the entire transcript of proceedings in this
matter for inclusion in the Record of Appeal.” (DE #63.) Notably, there is no appeal
pending.
As to the first item in the list above, requesting a sentence reduction based on the
Federal Prison Bureau Non-Violent Offender Relief Act of 2003, that was the popular
name for H.R. 3575 (108th Congress), which proposed to amend 18 U.S.C. § 3624 by
adding a subsection (g), which Defendant/Movant quotes. The problem is that H.R.
3575 never became law, and Defendant/Movant is basing his request on a non-existent
provision. That means it gives the court no authority to reduce his sentence.
In addition to that, and turning also to his second filing, based on 28 U.S.C.
§ 2255, Defendant/Movant’s 70-month sentence, for possession of methamphetamine
with intent to distribute, was based upon his admission of guilt pursuant to a written
plea agreement. In that agreement, at paragraph 7(d), he contracted:
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.
(DE #34, emphasis added.) Such waivers are generally enforceable, meaning that
Defendant/Movant cannot pursue relief in the present § 2255 motion unless this
waiver, or the plea agreement as a whole, was unintelligent or involuntary as the result
of ineffective assistance of counsel. Hurlow v. United States, 726 F.3d 958, 964-65 (7th Cir.
2013).
Defendant/Movant makes no such argument.* Without going into all of the
particulars (for example, he thinks the court erred by not giving him credit for accepting
a final deportation order), Defendant/Movant asserts that his sentence should be
reduced by 18 months because “the sentencing court failed to consider all 18 § 3553
*
It should be noted that after he entered the plea agreement, Defendant/Movant
requested, and received, a new appointed counsel. Despite that, he never sought,
through new counsel, to challenge the agreement or to withdraw his plea.
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factors as required by the applicable law,” citing United States v. Rita, 551 U.S. 338, 350
(2007). (DE #65 at 2.) As quoted above, he expressly waived his right to contest his
sentence and the manner in which it was imposed on any such ground, and that waiver
is valid. Hurlow, 726 F.3d at 964-65; cf. United States v. Smith, 759 F.3d 702, 707 (7th Cir.
2014) (“Smith may think that the court committed a mistake in classifying him as a
career offender, but we have held that appeal waivers preclude appellate review even
of errors that are plain in retrospect. [Citations omitted.] The point of an appeal waiver,
after all, is to prospectively surrender one's right to appeal, no matter how obvious or
compelling the basis for an appeal may later turn out to be.”)
In short, Defendant/Movant waived his ability to make the present collateral
attacks on his sentence. That means there is no reason to consider his request for
transcripts, but even if there were, in the plea agreement he waived his right to obtain
them as well:
I also agree to waive all rights, whether asserted directly or through a
representative, to, after sentencing, request or receive from the United
States any further records, reports, or documents pertaining to the
investigation or prosecution of this matter; this waiver includes, but is not
limited to, rights conferred by the Freedom of Information Act and the
Privacy Act of 1974.
(DE #34 at ¶ 7(e).) The United States would, of course, have to pay for preparation of
my transcripts (Defendant/Movant is requesting them at no cost to himself), meaning
that he is requesting documents from the United States.
If it can be determined from the motion and the record of prior proceedings that
a movant under 28 U.S.S. § 2255 is not entitled to relief, the motion should be denied
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without requiring a response from the government and without a hearing. RULE 4(b),
RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS.
That is the case here. For the reasons stated, Defendant/Movant’s: 1) “Motion of
Sentence Relief Under the Federal Prison Bureau Non-Violent Offender Relief Act of
2003,” (DE #62), 2) “Motion for Time Reduction by Inmate in Federal Custody Under 28
U.S.C. § 2255,” (DE #65), and 3) request for transcripts (DE #63), are all summarily
DENIED.
Further, the court DENIES the issuance of a certificate of appealability (“COA”).
A COA should issue only if the movant has made a substantial showing of the denial of
a constitutional right, that is, that reasonable jurists would find it debatable whether the
district court correctly resolved the issues or would conclude that those issues are
adequate to deserve further proceedings. 28 U.S.C. § 2255(d); 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003). The court believes that the explanation
herein for the denial of Defendant/Movant’s motions adequately explains why this
standard has not been met.
The clerk shall ENTER FINAL JUDGMENT dismissing the parallel civil cause
(2:14 CV 378) initiated by the § 2255 motion.
SO ORDERED.
Date: October 16, 2014
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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