Gonzalez v. USA

Filing 9

ORDER that Petitioner's 1 Motion to Vacate is GRANTED IN PART for the reasons stated in this order. The Clerk is directed to prepare an Amended Judgment with the same terms and conditions as Petitioner's Judgment f iled on 5/31/2016 and submit it to the Court for consideration. FURTHER ORDERED that Petitioner's remaining grounds for relief are DISMISSED WITHOUT PREJUDICE and that Petitioner's 5 Motion to hold this action in abeyance and 7 Motion to amend his § 2255 Motion to Vacate are DISMISSED as moot. FURTHER ORDERED that the Federal Defender of Western North Carolina is hereby appointed to represent Petitioner for the limited purpose of filing a notice of appeal on his behalf. The appointment of appellate counsel is respectfully deferred to the Court of Appeals for the Fourth Circuit. Signed by District Judge Martin Reidinger on 8/14/2017. (Pro se litigant served by US Mail.) (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO: 1:17-cv-00136-MR
[Criminal Case No: 1:15-cr-00084-MR-1]

JOEL ELIAS GONZALEZ,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )

ORDER

THIS MATTER is before the Court on consideration of Petitioner’s
Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C.
§ 2255 [Doc. 1], Petitioner’s “Motion to Hold Title 28 U.S.C. 2255 Mootion
[sic] at Abeyance” [Doc. 5], and Petitioner’s “Motion to Amend Previous
Section 2255 Motion” [Doc. 7].
I.

BACKGROUND
On February 8, 2016, Petitioner pled guilty pursuant to a written plea

agreement to one count of distributing 50 grams of actual methamphetamine
in violation of 21 U.S.C. § 841(a)(1). [Criminal Case No. 1:15-cr-00084-MR
(“CR”), Doc. 10: Indictment; CR Doc. 19: Plea Agreement; CR Doc. 20:
Factual Basis]. In the plea agreement, Petitioner agreed to waive his right
to appeal his conviction or sentence except for claims of ineffective
assistance of counsel or prosecutorial misconduct.

[CR Doc. 9: Plea

Agreement]. The Court sentenced Petitioner to 151 months of imprisonment,
entering judgment on May 31, 2016. [CR Doc. 32: Judgment]. Petitioner
did not file a direct appeal.
On May 19, 2017, Petitioner timely filed the present motion to vacate
contending, among other things, that his counsel was ineffective because he
failed to file a notice of appeal after judgment was entered despite
Petitioner’s express instruction that he do so.1 Petitioner moves the Court to
hold an evidentiary hearing and to vacate his judgment. [Doc. 1 at 4, 6, 12].
II.

STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255

Proceedings in the United States District Courts, sentencing courts are
directed to promptly examine motions to vacate, along with “any attached
exhibits and the record of prior proceedings” in order to determine whether
a petitioner is entitled to any relief. The Court has considered the record in
this matter and applicable authority and concludes that this matter can be
resolved without an evidentiary hearing. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
III.

1

DISCUSSION

Petitioner also contends that counsel was ineffective in failing to challenge the amount
of methamphetamine attributed to him, and in failing to investigate whether the seized
substance was actual methamphetamine or a mixture of methamphetamine and other
substances. [Doc. 1 at 5, 7].
2

It is well-settled that when a defendant clearly instructs his attorney to
file a notice of appeal from a criminal judgment, the failure to file the notice
of appeal constitutes per se ineffective assistance of counsel. That is, the
defendant is presumed to have suffered prejudice no matter the potential
merits of his claims for relief or whether he has waived his appellate rights,
as Petitioner has done through his written plea agreement in this case. See
Evitts v. Lucey, 469 U.S. 387, 391-405 (1985); United States v. Poindexter,
492 F.3d 263, 269 (4th Cir. 2007); United States v. Peak, 992 F.2d 39, 42
(4th Cir. 1993).
Here, Petitioner asserts in his sworn petition that his attorney failed to
file a direct appeal after being instructed to do so. Specifically, Petitioner
avers that he met with defense counsel on May 30, 2016; that counsel initially
persuaded him not to appeal; and that before counsel left, Petitioner changed
his mind and asked counsel to file a notice of appeal, so that Petitioner could
hire a new attorney to take a fresh look at his case. [Doc. 1 at 6]. In its
response to Petitioner’s § 2255 motion, the Government concedes that
Petitioner’s claim of ineffective assistance of counsel based on the failure to
file a direct appeal after being instructed to do so warrants the granting of his
motion, at least in part. [Doc. 8: Government’s Response]. The Government
further contends that the appropriate remedy in this case is to vacate
3

Petitioner’s judgment, enter an amended judgment so that he may file a
direct appeal, and dismiss the remaining claims without prejudice. [Id. at 1,
5-6].
Upon review of Petitioner’s motion, the Court concludes that the
appropriate remedy in this matter is to vacate the original judgment and enter
a new judgment only for the purpose of allowing Petitioner to pursue a direct
appeal of his conviction and/or sentence in his underlying criminal case.
Petitioner’s remaining claims shall be dismissed without prejudice to his right
to file another § 2255 motion, if necessary, after direct appeal.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate
[Doc. 1] is GRANTED IN PART for the reasons stated herein. The Clerk is
directed to prepare an Amended Judgment with the same terms and
conditions as Petitioner’s Judgment filed on May 31, 2016, and submit it to
the Court for consideration.
IT IS FURTHER ORDERED that Petitioner’s remaining grounds for
relief are DISMISSED WITHOUT PREJUDICE and that Petitioner’s Motion
to hold this action in abeyance [Doc. 5] and Motion to amend his § 2255
Motion to Vacate [Doc. 7] are DISMISSED as moot.
IT IS FURTHER ORDERED that the Federal Defender of Western
4

North Carolina is hereby appointed to represent Petitioner for the limited
purpose of filing a notice of appeal on his behalf.

The appointment of

appellate counsel is respectfully deferred to the Court of Appeals for the
Fourth Circuit.
The Clerk is directed to provide copies of this Order to the Petitioner,
counsel for the Government, and the Federal Defender.
IT IS SO ORDERED.

Signed: August 14, 2017

5