Gonzalez-Jose v. USA

Filing 1

MEMORANDUM OPINION & ORDER: 1. The Report and Recommendation issued by United States Magistrate Judge J. Gregory Wehrman on October 18, 2012 [Record No. 33], is ADOPTED and INCORPORATED herein by reference. 2. Defendant Jose Antonio Gonzalez-Mejia& #039;s Motion to Vacate, Set Aside, or Correct the Judgment previously entered in this action is DENIED, without prejudice. 3. Defendant Jose Antonio Gonzalez-Mejia's habeas action [Civil Action No. 3: 12-cv-7241-DCR] is DISMISSED and STRICKEN from the Court's docket. The Court concludes that any appeal of this Memorandum Opinion and Order would be frivolous and not taken in good faith. 28 U.S.C. § 1915(a)(3). Signed by Judge Danny C. Reeves on 11/5/2012.(CBD)cc: COR (Jose Antonio Gonzalez via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
UNITED STATES OF AMERICA,
Plaintiff,
V.
JOSE ANTONIO GONZALEZ-MEJIA,
Defendant.

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Criminal Action No. 3: 11-11-DCR
and
Civil Action No. 3: 12-7241-DCR

MEMORANDUM OPINION
AND ORDER

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Defendant Jose Antonio Gonzalez-Mejia is a citizen of Mexico. In 2006, he was
convicted of Second Degree Rape in the Henry Circuit Court. He was deported from the United
States on October 28, 2008. However, he return illegally following this deportation. On or
about July 19, 2011, the Louisville, Kentucky office of the United States Department of
Homeland Security, Immigration and Customs Enforcement (“ICE”) was advised that GonzalezMejia had been arrested for a misdemeanor violation and was being held in the Carroll County,
Kentucky Detention Center. Gonzalez-Mejia was later interviewed by ICE officers and his
identity was confirmed.
On August 11, 2011, a federal grand jury returned a one-count indictment, charging
Gonzalez-Mejia with illegal entry into the United States following the commission of an
aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). [Record No. 8] By virtue of
his prior conviction, the defendant faced a possible term of incarceration of 20 years, a fine of
up to $250,000, payment of a special assessment, and a term of supervised release of three years.
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Following appointment of counsel, Gonzalez-Mejia entered a guilty plea to the charge contained
in the indictment. [Record No. 18] During the hearing held on September 20, 2011, GonzalezMejia admitted his criminal conduct and tendered a written Plea Agreement for the Court’s
consideration. The Plea Agreement was accepted by the Court at the time of the defendant’s
sentencing hearing. [Record No. 20] At the conclusion of the sentencing hearing, the Court
imposed a term of incarceration of 71 months, to be followed by a term of supervised release of
three years. [Record No. 30] The sentence imposed was within the guideline range and reflected
consideration of all relevant factors outlined in 18 U.S.C. § 3553. [Id.]
Although Gonzalez-Mejia waived the right to appeal or collaterally attack his guilty plea,
conviction and the sentence actually imposed by the Court, the defendant violated his agreement
with the government by filing a Notice of Appeal on January 20, 2012. [See Record No. 20;
Plea Agreement, ¶ 8; and Record No. 24.] That appeal remains pending before the United States
Court of Appeals for the Sixth Circuit.
In addition to filing a direct appeal, on October 12, 2012, Gonzalez-Mejia filed a motion
with this Court seeking to vacate, set aside, or correct his sentence in accordance with 28 U.S.C.
§ 2255. [Record No. 32] Through this motion, the defendant seeks to assert a variety of claims
of ineffective assistance of his trial counsel. Pursuant to local practice, the § 2255 motion was
referred to a United States Magistrate Judge for review and issuance of a Report and
Recommendation.
On October 18, 2012, United States Magistrate Judge J. Gregory Wehrman issued his
report which recommended that the defendant’s § 2255 motion be dismissed without prejudice

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because Gonzalez-Mejia’s direct appeal remains pending before the Sixth Circuit. Citing
Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998), Magistrate Judge Wehrman noted
that, “in the absence of extraordinary circumstances, a district court is precluded from
considering a § 2255 application for relief during the pendency of the applicant’s direct appeal.”
Here, the defendant has not argued that any exceptional circumstances exist which would
warrant relief while the defendant’s direct appeal remains pending.
The Magistrate Judge has recommended that Gonzalez-Mejia’s § 2255 motion be denied,
without prejudice to being renewed following the completion of his direct appeal. He has further
suggested that this Court should not certify any appeal of the recommended dismissal under 28
U.S.C. 2253(c). Defendant Golzalez-Mejia has not filed objections to the United States
Magistrate Judge’s Report and Recommendation. Additionally, the undersigned has conducted
a de novo review the defendant’s motion and concludes that exceptional circumstances have not
been demonstrated which would warrant any relief while the direct appeal is pending.
Accordingly, it is hereby
ORDERED as follows:
1.

The Report and Recommendation issued by United States Magistrate Judge J.

Gregory Wehrman on October 18, 2012 [Record No. 33], is ADOPTED and
INCORPORATED herein by reference.
2.

Defendant Jose Antonio Gonzalez-Mejia’s Motion to Vacate, Set Aside, or

Correct the Judgment previously entered in this action is DENIED, without prejudice.

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3.

Defendant Jose Antonio Gonzalez-Mejia’s habeas action [Civil Action No. 3: 12-

cv-7241-DCR] is DISMISSED and STRICKEN from the Court’s docket. The Court concludes
that any appeal of this Memorandum Opinion and Order would be frivolous and not taken in
good faith. 28 U.S.C. § 1915(a)(3).
This 5th day of November, 2012.

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