Cruz-Banegas v. USA
MEMORANDUM DECISION and ORDER Denying Petitioner's Motion Under 28 USC 2255. Signed by Judge Ted Stewart on 10/02/2012. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
UNITED STATES OF AMERICA,
Civil Case No. 2:11-CV-1024 TS
Criminal Case No. 2:10-CR-724 TS
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny Petitioner’s Motion.
On August 17, 2010, Petitioner was charged in a felony information with reentry of a
previously removed alien in violation of 8 U.S.C. § 1326. Petitioner pleaded guilty on November
16, 2010, and was sentenced to 33 months imprisonment. Judgment was entered on November
Petitioner timely appealed his conviction. On appeal, Petitioner argued that the Court’s
failure to personally advise him of the rights he would forfeit by pleading guilty required
reversal. The Tenth Circuit rejected Petitioner’s argument, affirming his conviction and sentence
on August 15, 2011. Petitioner timely filed his § 2255 Motion on November 7, 2011.
Petitioner raises four arguments in his Motion: (1) that he could not have been removed
from the United States as alleged in the Information; (2) that he received ineffective assistance of
counsel; (3) that he was not sufficiently informed of his Constitutional rights; and (4) that
reversal is required because the Court violated “basic fundamental liberties.”
Petitioner first argues that he could not have been deported on the date alleged in the
Information because he was in state custody. This argument appears to stem from a discrepancy
between the Information and the facts presented at the change of plea hearing.
The Information charges that Petitioner was removed on or about April 16, 2010, and was
found in the United states on or about May 28, 2010. However, at the change of plea hearing,
Petitioner stated that he had been removed on April 16, 2009, and was found in the United States
on October 2, 2009.1 Petitioner admitted that he was previously removed, that he knowingly
reentered the United States, and that he did so without the necessary permission.2 The Statement
Docket No. 22, at 15-17.
in Advance of Plea was amended to reflect the new dates admitted to by Petitioner3 and
Petitioner was subsequently adjudicated as guilty. Petitioner did not raise any argument
concerning the dates in the Information on direct appeal.
The Supreme Court has ruled that because “a final judgment commands respect,” it has
“long and consistently affirmed that a collateral challenge may not do service for an appeal.”4
Generally, the Tenth Circuit has held that § 2255 cannot be used to test the legality of matters
which should have been raised on appeal.5 Further, if an issue is not raised on direct appeal, the
defendant “is barred from raising the issue in a § 2255 motion proceeding, unless he establishes
either cause excusing the procedural default and prejudice resulting [from] the error or a
fundamental miscarriage of justice [if] the claim is not considered.”6
Here, Petitioner could have raised this issue on appeal and Petitioner has not presented
evidence to establish cause and prejudice or a fundamental miscarriage of justice to excuse the
procedural default. Even considering the merits of the argument, it fails. A court may amend the
date in a charging document so long as the date is not an essential element of the offense
charged.7 The exact date of deportation is not an essential element of 8 U.S.C. § 1326.8
Docket No. 16, at 8.
United States v. Frady, 456 U.S. 152, 165 (1982).
United States v. Khan, 835 F.2d 749, 753 (10th Cir. 1987); United States v. Warner, 23
F.3d 287, 291 (10th Cir. 1994).
United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996); see also Frady, 456 U.S. at 167-
United States v. Gammill, 421 F.2d 185, 186 (10th Cir. 1970) (“A defective allegation of
time is a matter of form if time is not an essential element of the offense and if the indictment
Therefore, the fact that the Information contained different dates than Petitioner ultimately
admitted does not entitle Petitioner to relief.
Petitioner argues that his trial counsel was ineffective because the Court informed
Petitioner that he could not be sentenced because there was not enough evidence, but Petitioner’s
counsel told the Court to sentence Petitioner anyway “so we can get over with this case.”9
Petitioner further states that counsel was supposed to help, but did not adequately explain the law
or how the American judicial system works.
The Supreme Court has set forth a two-pronged test to guide the Court in making a
determination of ineffectiveness of counsel. “To demonstrate ineffectiveness of counsel,
[Petitioner] must generally show that counsel’s performance fell below an objective standard of
reasonableness, and that counsel’s deficient performance was prejudicial.”10 A Court is to review
Petitioner’s ineffective assistance of counsel claim from the perspective of his counsel at the time
he or she rendered the legal services, not in hindsight.11 In addition, in evaluating counsel’s
performance, the focus is not what is prudent or appropriate, but only what is constitutionally
charges facts showing that the offense was committed within the period of the statute of
United States v. Cruz, 189 F. App’x 725, 727 (10th Cir. 2006).
Docket No. 1, at 5.
United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).
compelled.12 Finally, there is “a strong presumption that counsel provided effective assistance,
and a section 2255 defendant has the burden of proof to overcome that presumption.”13
Reviewing Petitioner’s claims, the Court finds that he has not met either prong of the
Strickland test. There is no evidence to support Petitioner’s contention that the Court informed
him that he could not be sentenced because there was not enough evidence and that counsel told
the Court to sentence him anyway. Rather, the record shows that counsel made an eloquent
argument in support of his request for a below guideline sentence. Counsel pointed out that
Petitioner wanted to return to his family as quickly as possible and that Petitioner had already
been in state custody for almost a year, time for which he would not receive credit against his
federal sentence. Therefore, the Court cannot find deficient performance on this claim.
Petitioner also complains that counsel did not sufficiently explain the judicial system.
However, it is clear that the rights available to Petitioner were contained in the plea agreement.
These rights were reviewed at the change of plea hearing, with the aid of an interpreter, and
Petitioner indicated that he understood them. Therefore, there is no merit to this claim. Further,
Petitioner has failed to show how he has been prejudiced by counsel’s alleged failures.
Therefore, the Court must reject Petitioner’s second claim.
Petitioner’s third argument is that he was not sufficiently informed of his Constitutional
rights and that he would not have pleaded guilty had he known these rights.
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).
United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2002).
Petitioner made this same argument on appeal. Petitioner argued that the Court did not
sufficiently advise him of the rights he would be giving up by pleading guilty. Petitioner asserted
that he would not have pleaded guilty had he understood these rights. The Tenth Circuit rejected
this argument, stating that there was no evidence that Petitioner would not have pleaded guilty
had the Court personally advised him of his rights and that he was informed of these rights in the
“An issue disposed of on direct appeal will generally not be reconsidered on a collateral
attack by a motion pursuant to 28 U.S.C. § 2255. However, a motion under Section 2255 may be
proper when there was been an intervening change in the law of a circuit.”14
As stated, the Tenth Circuit addressed the argument now raised by Petitioner in Claim
Three. Petitioner has pointed to no intervening change in the law of the Tenth Circuit.
Therefore, this claim is procedurally barred.
Petitioner’s final argument is that reversal is required because the Court violated “basic
fundamental liberties.” Petitioner does not identify what “basic fundamental liberties” the Court
violated. Therefore, the Court must reject this conclusory argument. Further, to the extent this
argument relies on Petitioner’s other claims, it fails for the same reasons set forth above.
United States v. Nolan, 571 F.2d 528, 530 (10th Cir. 1978) (internal citations omitted).
See also United States v. Prichard, 975 F.2d 789, 791 (10th Cir. 1989) (“Absent an intervening
change in the law of a circuit, issues disposed of on direct appeal generally will not be considered
on a collateral attack by a motion pursuant to § 2255.”).
Based upon the above, it is hereby
ORDERED that Petitioner’s § 2255 Motion (Docket No. 1 in Case No. 2:11-CV-1024
TS) is DENIED for the reasons set forth above. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED, that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
The Clerk of Court is directed to close Case No. 2:11-CV-1024 TS forthwith.
DATED October 2, 2012.
BY THE COURT:
United States District Judge
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