Gonsalez-Campos v. United States of America

Filing 34

ORDER overruling 31 Objection to Report and Recommendation; adopting in full 29 Report and Recommendation; dismissing 1 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28:2255. A certificate of appealability is not issued. Signed by U.S. District Judge Karen E. Schreier on 10/29/18. (SST)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHRISTY GONSALEZ-CAMPOS,
Movant,
vs.
UNITED STATES OF AMERICA,

4:17-CV-04127-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING MOTION

Respondent.
Movant, Christy Gonsalez-Campos, filed a motion to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. Civ. Docket 1. 1 The matter was
assigned to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate
Judge Duffy recommends that Gonsalez-Campos’s motion be dismissed. Civ.
Docket 29.
Magistrate Judge Duffy recommends dismissal because GonsalezCampos has not shown ineffective assistance of counsel. Magistrate Judge
Duffy found that pre-plea decisions are not cognizable in a § 2255 claim and
Gonsalez-Campos has shown no prejudice as to the plea. Gonsalez-Campos
also argues that her attorney was ineffective for failing to raise pretrial release
issues on her behalf, but Magistrate Judge Duffy found that Gonsalez-Campos
raised those issues several times on her own behalf and was denied pretrial
The court will cite to “Civ.” when citing to documents filed in GonsalezCampos’s civil § 2255 case and will cite to “CR” when citing to documents filed
in Gonsalez-Campos’s criminal case found at 4:15-cr-40120.
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release because Gonsalez-Campos was appearing on a writ and was not in
federal custody.
Gonsalez-Campos objects to the report and recommendation. Civ. Docket
31. She claims that she was not aware that the money was related to a firearm
and instead thought it was for the sale of a vacuum cleaner. As a result, she
claims her husband was at fault, but she was actually innocent. Id. at 2.
Gonsalez-Campos also claims that her husband, David Gonsalez-Campos,
threatened and intimidated her and made her plead guilty. Id. at 3.
In her statement of factual basis, Gonsalez-Campos stated:
From on or about March 31, 2015, to on or about April 1, 2015, in
the District of South Dakota, the Defendant, Cristina Dawn Griego,
a/k/a Cristina Dawn Myers, knowingly aided and abetted the
transfer of a firearm as defined by 26 U.S.C. § 5845(a)(1), namely,
a Remington, Model 870 Express Magnum, 20 gauge shotgun,
bearing serial number B868222U, with a barrel less than 18
inches long, which was not registered to anyone in the National
Firearms Registration and Transfer Record as required by 26
U.S.C. § 5841, in violation of 26 U.S.C. §§ 5861(e), 5845(a)(1) and
5871, and 18 U.S.C. § 2.
A co-conspirator of the Defendant offered to sell the abovedescribed shotgun to a confidential informant (CI) for $200. On
March 31, 2015, the Defendant met with the CI in Sioux Falls,
South Dakota about the purchase of the shotgun, which the
Defendant knew was illegal to possess or sell. The Defendant told
the CI her co-conspirator would not sell the firearm without
another individual involved in the conspiracy being present. The
Defendant assisted in making arrangements for the sale to be
completed.
On April 1, 2015, after the firearm was sold to the CI, a controlled
payoff was executed where the CI gave the Defendant and another
co-conspirator money for the firearm.

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CR Docket 97. This factual basis statement was verified by Gonsalez-Campos
as being true during the change of plea hearing and it was supplemented with
additional facts. CR Docket 146 at 15. Thus, Gonsalez-Campos admitted
during the change of plea hearing that she knew the transaction was about the
sale of an illegal firearm and not the sale of a vacuum cleaner.
With regard to the voluntariness issue, during the change of plea
hearing, the court asked Gonsalez-Campos whether anyone had attempted “in
any way to force you to plead guilty today?” CR Docket 146 at 10. GonsalezCampos’s response was “no, ma’am.” Id. The court asked her if she was
“pleading guilty of her own free will because [she believed she was] guilty?” Id.
Gonsalez-Campos replied, “yes, ma’am.” Id. Because Gonsalez-Campos testified
under oath at her plea hearing that she committed the firearm offense and that
she was pleading guilty of her own free will without threats or coercion, the
plea was not involuntary. See, e.g., United States v. Gray, 152 F.3d 816, 820
(8th Cir. 1998).
After considering Gonsalez-Campos’s objections to the report and
recommendation, the court overrules the objections and adopts in full the
report and recommendation of Magistrate Judge Duffy.
Before denial of a § 2255 motion may be appealed, a movant must first
obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A “substantial showing” is one that demonstrates
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“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 court finds that Gonsalez-Campos has not made a substantial
showing that the district court’s assessments of her claims are debatable or
wrong. Consequently, a certificate of appealability is not issued.
Thus, it is ORDERED
1. Gonsalez-Campos’s objections to the report and recommendation (Civ.
Docket 31) are overruled.
2. The report and recommendation (Civ. Docket 29) is adopted in full.
Gonsalez-Campos’s motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255 (Civ. Docket 1) is dismissed.
3. A certificate of appealability is not issued.
Dated October 29, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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