Gonzalez #08059-040 v. United States of America

Filing 3

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GILBERT RAMIRO GONZALEZ,
Movant,
File No. 1:12-CV-906
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
_____________________________/
OPINION
This matter is before the Court on Movant Gilbert Ramiro Gonzalez’s motion,
pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. (Dkt. No. 1, Mot.
Vacate.) For the reasons that follow, this motion will be denied.
I.
The grand jury indicted Movant on six counts. (1:10-CR-148, Dkt. No. 1, Indictment.)
On October 5, 2010, Movant pled guilty to two of the six counts pursuant to an agreement
with the U.S. Attorney’s Office: (1) Count II, conspiracy to possess with intent to distribute
and to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(B)(ii), and 851; and (2) Count IV, felon in possession of firearms, in violation of
18 U.S.C. 922(g)(1). (1:10-CR-148, Dkt. No. 53, Plea Agreement.) Movant appealed, and
his appeal was dismissed pursuant to an appeal waiver on August 23, 2011. (1:10-CR-148,
Dkt. No. 77, Order.) On August 27, 2012, Movant filed the present § 2255 motion. (Mot.
Vacate.) For the reasons that follow, this motion will be denied.

II.
A prisoner who moves to vacate his sentence under § 2255 must show that the
sentence was imposed in violation of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such sentence, that the sentence was in excess of the
maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or influence on
the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.
2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). A petitioner can
prevail on a § 2255 motion alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a complete miscarriage of justice, or, an error
so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d
486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.
1990) (internal quotations omitted)).
In reviewing a § 2255 motion where factual disputes arise, “the habeas court must hold
an evidentiary hearing to determine the truth of the petitioner’s claims.” Valentine v. United
States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477
(6th Cir. 1999)). The Court must grant a hearing to determine the issues and make findings
of fact and conclusions of law on a § 2255 motion “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §

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2255(b). No evidentiary hearing is required if the allegations “cannot be accepted as true
because they are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999)). “If it plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not entitled to relief, the judge must
dismiss the motion.” Rules Governing § 2255 Cases, Rule 4(b).
III.
Movant asserts that he: (1) was provided with ineffective assistance of counsel; (2) did
not knowingly and voluntarily enter the appeal waiver; (3) did not understand the charges
against him; and (4) should receive a downward departure for significantly reduced mental
capacity. Movant waived his right to § 2255 collateral attacks in his plea agreement (1:10CR-148, Plea Agreement 7 ¶ 10.) None of these claims are properly before this Court as a
result.
Plea agreement waivers of § 2255 rights are generally enforceable. See Davila v.
United States, 258 F.3d 448, 450 (6th Cir. 2001) (citing Watson v. United States, 165 F.3d
486, 489 (6th Cir. 1999)). Valid plea agreement waivers must be entered into “knowingly,
intelligently, and voluntarily.” Id. at 451. A collateral attack waiver generally does not bar
review of claims “that go to the very validity of a guilty plea.” In re Acosta, 480 F.3d 421,
422 (6th Cir. 2007). Thus, Movant may properly assert that his § 2255 waiver was not entered
into knowingly, voluntarily, or that the agreement was a product of counsel’s ineffective

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assistance. See id., n. 2. Movant did not attack the validity of his § 2255 waiver in this manner
and, consequently, the terms of the plea agreement bar all § 2255 claims.
Movant does, however, attack the validity of the plea agreement’s appeal waiver. (Mot.
Vacate, Ex. 1 at 7.) Movant asserts that the appeal waiver was not entered into voluntarily or
knowingly. Id. Movant supports this assertion with two arguments: (1) the waiver was
without his knowledge because depression and schizophrenia diminished his mental capacity
and ability to understand the waiver; and (2) the waiver was not voluntary because the
sentencing consequences of his career offender status were not explained to him. Id.
Assuming Movant also used these arguments to attack his § 2255 waiver, Movant
would still not be entitled to relief. As shown by the record, Movant voluntarily agreed to the
plea agreement, carefully discussed the plea agreement with his attorney, and was advised of
his legal rights and the consequences of entering the plea agreement. (1:10-CR-148, Dkt. No.
75, Plea Tr. 3-5.) Movant acknowledged that he was satisfied with his attorney’s
representation. Id. at 5. The record does not support Movant’s argument that sentencing
consequences were not explained. Similarly, the record clearly contradicts Movant’s
contention that he suffered a mental illness that prevented him from understanding the
agreement.
THE COURT: Is there anything mentally or physically at this time that would
affect you and your ability to understand these proceedings?
DEFENDANT GONZALEZ: No.
Id. The Presentence Report confirms that Movant suffered from depression and
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schizophrenia. (Presentence Rep. 19 ¶ 116.) The Community Mental Health Authority of
Clinton, Eaton, and Ingham Counties treated Movant’s mental illness starting in 2007. Id. The
medical records show Movant was prescribed Seroquel, Lamictal, and Prozac to treat his
mental illness. Id. Movant testified that these mental conditions did not affect his
understanding of the plea agreement. The arguments Movant now provides to the contrary
are merely conclusory. Movant asserts that he did not understand the agreement because his
diagnosed mental illness diminished his mental capacity. No evidence is provided to suggest
why Movant’s prior testimony should not be credited or how Movant’s mental illness
impacted his understanding. This Court will not entertain Movant’s conclusory assertions.
The record shows Movant entered the agreement knowingly, intelligently, and voluntarily.
The record further shows that defendant was made specifically aware of Paragraph 10
of the plea agreement, which contained the waiver of appeal and collateral attack.
THE COURT: Okay. Has anyone threatened you, then, as it pertains to this
plea to these counts today?
DEFENDANT GONZALEZ: No.
THE COURT: Are you pleading guilty, then, freely and voluntarily at this
time?
DEFENDANT GONZALEZ: Yes.
THE COURT: Do you understand and has your lawyer told you that as to
Paragraph 10 of the plea agreement, there are certain rights to appeal which
you would be giving up by entering into this plea agreement at this time? Do
you understand that and do you recall having discussed this matter with your
attorney, Mr. Ferrer?

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DEFENDANT GONZALEZ: Yes.
Id. at 10. Movant’s contention that the agreement was not entered into knowingly and
voluntarily cannot be accepted as true in light of this testimony. Again, the record clearly
shows Movant entered into the appeal and collateral attack waiver knowingly, intelligently,
and voluntarily. Movant is entitled to no relief.
IV.
Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a
certificate of appealability to Movant. To warrant a grant of a certificate of appealability,
Movant “must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket
denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001).
Rather, the district court must “engage in a reasoned assessment of each claim” to determine
whether a certificate is warranted. Id. Upon review of each claim, the Court does not believe
that reasonable jurists would find its assessment of Movant’s claims to be debatable or
wrong. Accordingly, a certificate of appealability will also be denied as to each claim.
An order and judgment consistent with this opinion shall be entered.

Dated: June 27, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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