SANDOVAL v. USA

Filing 10

ENTRY Discussing Motion for Relief Pursuant to 28 U.S.C. ' 2255 and Denying Certificate of Appealability: The motion for relief pursuant to ' 2255 is therefore denied. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability ***. Signed by Judge William T. Lawrence on 6/11/2013. Copy sent to Jose Sandoval via US Mail. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOSE ELISEO SANDOVAL,
Movant,
vs.
UNITED STATES OF AMERICA.

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No. 1:12-cv-200-WTL-DKL
No. 1:10-cr-0006-001

Entry Discussing Motion for Relief Pursuant to
28 U.S.C. ' 2255 and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Jose Eliseo Sandoval for relief
pursuant to 28 U.S.C. ' 2255 must be denied and this action dismissed with prejudice. In
addition, the court finds that a certificate of appealability should not issue.
I. The ' 2255 Motion
Sandoval was charged in No. 1:10-cr-0006-001 with unlawful re-entry into the United
States after having been deported subsequent to a conviction for an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). On September 24, 2010, Sandoval filed a
Petition to Enter a Plea of Guilty. On February 11, 2011, the court conducted a change of plea
hearing. At that hearing, the court determined “that the defendant [Sandoval] [was] competent to
enter a plea of guilty and that the defendant’s plea [was] made knowingly and willingly.” The
court also found, “[b]ased on questions asked of the defendant [Sandoval] by the Court and the
defendant’s responses to those questions,” that Sandoval was “competent to enter a plea of
guilty.” After hearing and accepting the stipulated factual basis for the plea, the Sandoval’s
guilty plea petition was accepted and Sandoval was adjudged guilty.

The court then proceeded to impose sentence, which was formally entered on the clerk’s
docket on March 31, 2011. Sandoval did not appeal his conviction or his sentence, but now seeks
relief pursuant to 28 U.S.C. § 2255.
A motion pursuant to 28 U.S.C. 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). 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). Relief pursuant to § 2255 is limited to an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a complete
miscarriage of justice. Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991).
AIn order for a plea to be valid, it must be made voluntarily, knowingly, and intelligently.@
United States v. Hays, 397 F.3d 564, 567 (7th Cir. 2005) (citing cases). A plea is voluntary when
it is not induced by threats or misrepresentations, and the defendant is made aware of the direct
consequences of the plea. United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989) (citing
Brady v. United States, 397 U.S. 742, 755 (1970)). Sandoval entered such a plea in this case.
Sandoval’s claim in support of his § 2255 motion is that he was denied effective
assistance of counsel. The right to the effective assistance of counsel is denied when the
performance of counsel falls below an objective standard of reasonable professional conduct and
prejudices the defense. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). For Sandoval to establish that his
“counsel’s assistance was so defective as to require reversal” of his conviction, he must make

two showings: (1) deficient performance that (2) prejudiced his defense. Strickland, 466 U.S. at
687. With respect to the first prong, “[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510,
521 (2003) (quoting Strickland, 466 U.S. at 688). As to the second required prong under
Strickland, in order to show prejudice from counsel’s inadequate representation, a petitioner
“‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different . . . .’” Pole v. Randolph, 570 F.3d 922,
934 (7th Cir. 2009) (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see
also Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir. 2004).
In a case where a petitioner pled guilty as a result of alleged ineffective assistance of
counsel, to satisfy the first prong of the Strickland test, the petitioner must show that his
counsel's advice leading to the plea was outside the range of professionally competent assistance.
Hill v. Lockhart, 474 U.S. 52, 56–57 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771
(1970); Tollett v. Henderson, 411 U.S. 258, 267 (1973)). To satisfy the second Strickland prong,
he must show that there is a reasonable probability that, but for his counsel's deficient
performance, he would not have entered a guilty plea and instead would have gone to trial. Hill,
474 U.S. at 58; U.S. v. Parker, 609 F.3d 891, 894 (7th Cir. 2010); Wyatt v. U.S., 574 F.3d 455,
458 (7th Cir. 2009). Counsel's deficient performance must have been a decisive factor in the
defendant's decision to enter a guilty plea. Wyatt, 574 F.3d at 458.
Sandoval asserts that his trial counsel was ineffective. Each of these relate to the
imposition of sentence. His specifications are that his attorney (a) failed to request a fast-track
downward departure, (b) failed to object to the 16 level increase (Sentencing Guideline §

2L1.2(b)(1)(A)(ii)) for having a prior felony conviction for a crime of violence, (c) failed to
request a one-level reduction for waiving Sandoval’s appeal rights, and (d) failed to object to the
presentence investigation. In each instance, however, the expanded record either shows no basis
for proceeding as Sandoval contends his attorney should have or contradicts Sandoval’s
contention that his attorney should have acted otherwise.
Based on the foregoing, there is no “‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Harrington v.
Richter, 131 S. Ct. 770, 787 (2011)(quoting Strickland, 466 U.S. at 694). This is the end of the
required analysis because a court “need not consider the first prong of the Strickland test if [it]
find[s] that counsel’s alleged deficiency did not prejudice the defendant.” Berkey v. United
States, 318 F. 3d 768, 772 (7th Cir. 2003);
The motion for relief pursuant to ' 2255 is therefore denied. Judgment consistent with
this Entry shall now issue.

II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing ' 2255 Proceedings, and 28 U.S.C. ' 2253(c), the court finds that Sandoval has failed
to show that reasonable jurists would find “it debatable whether the petition states a valid claim
of the denial of a constitutional right” and “debatable whether [this court] was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

06/11/2013
Date: ___________________

_______________________________

Distribution:
Electronically Registered Counsel
Jose Eliseo Sandoval
No. 09419-028
Yazoo City – Medium FCI
Inmate Mail/Parcels
P. O. Box 5888
Yazoo City, MS 39194

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana