Salgado-Lopez v. USA

Filing 13

Transmission of Notice of Appeal, Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 11 Notice of Appeal, (Attachments: # 1 Opinion and Order, # 2 Judgment, # 3 Docket Sheet) (lak)

UNITED STATES COURT OF APPEALS OF THE
SEVENTH CIRCUIT
CARMELO SALDAGO-LOPEZ
Petitioner (Prose),

-v-

Case No. 17-cv-780-wmc
Criminal No. 16-cr-99-wmc

UNITED STATES IF AMERICA
Respondent.

PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY

COMES NOW Carmelo Salgado-Lopez, the Petitioner pro se, and respectfully files his Motion for
Certificate of Appealability pursuant to 28 U.S.C. Section 2253(c)(2). This Motion is timely filed with the
United States Court of Appeals, premised on the United States District Court for the Western District of
Wisconsin's denial of Petitioner's Section 2255, and denial of certificate of appealability on October 1, 2019,
although the Petitioner did not receive notice until 4th. of October.
IN SUPPORT THE PETITIONER STATES AS FOLLOWS:
JURISDICTION

Certificate of Appealability.
(1) In a habeas corpus proceeding in which the detention complained of arises from
process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot take an
appeal unless a circuit justice or a circuit or district judge issues a ce1iificate of appealability under
28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district clerk must send to the
court of appeals the certificate (if any) and the statement described in Rule l l(a) of the Rules
Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if any), along with the notice of
appeal and the file of the district-court proceedings. If the district judge has denied the certificate,
the applicant may request a circuit judge to issue it.
The Petitioner has outlined his case issues and have been placed on record in his Section 2255
filing. The Petitioner bring this Motion for Certificate of Appealability based upon his " Sixth Amendment "
right to have " effective assistance of counsel "at all stages of his Due Process. The record is clear

that counsel Peter Moyer provided "constitutionally" ineffective during plea talks, and "faulty and
erroneously" advise regarding the Petitioner's sentencing range of 87 months, and " induced "the Petitioner
to plead to 87 months. It should be further noted that counsel failed to advise the Petitioner he was facing
at least a mandatory 120 month sentence.
The record is further clear that counsel Moyer failed to file a " notice of appeal " after the Petitioner
requested counsel to file. The Petitioners states that a "plea " agreement is one of the most " critical "
stage of Due Process, and when a Petitioner bases his decision on counsel's false and misleading advise,
a " claim of Ineffective of counsel "is preserved.
The Sixth Amendment right to effective assistance of counsel is a " constitutional right" and must
be preserved. The Petitioner has satisfied the" first and second prong" of STRICKLAND -v- WASHINGTON,
466 U.S .. 668 (1984), and counsel Moyer's deficient performance resulted in actual prejudice, and Moyer's
conduct fell within the range of professional norms warranting this Honorable Court to" grant" the
Petitioner's motion for certificate of appealability.
Respectfully submitted on this

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day of October, 2019

Mr. Carmelo Salgado-Lo'pez # 073
FCI Greenville
P.O. Box 5000
Greenville, IL 62246
PRO SE REPRESENTATION

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this foregoing instrument
has been deposited in FCI Greenville, prison internal lebl mailing system with first
class postage affixed thereto on t.his day of@ C/(;J(Lt;'/2019, correctly addressed
to: Assistant United States State Attorney.
The undersigned hereby executed this certificate under penalty of perjury
pursuant to 28 U.S.C. Section 1746

IN THE UNITED STATES DISTRICT COURr:c,c I.iCI
FOR THE WESTERN DISTRICT OF WISCONSIN '

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UNITED STATES OF AMERICA,
Respondent,

-v-

Civil Case No. 17-cv-780
Criminal Case No.
3: 16-cr-00099-001

CARMELO SALGADO-LOPEZ
Petitioner,

MEMORANDUM BRIEF IN SUPPORT TO AMEND/SUPPLEMENT THE PETITIONER'S
28 U.S.C. SECTION 2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

COMES NOW Carmelo Salgado-Lopez, the Petitioner, pro se, and respectfully files this Memorandum
Brief in support to Amend/Supplement his original 28 U.S.C. Section 2255 Motion to vacate, set aside,
or correct sentence, pursuant to federal Rules of Civil Procedure Rule 15(a). This Amended or Supplement
to his Section 2255(1)(1). See, CLAY-v- UNITED STATES, 537 U.S. 522, 155 L. Ed. 2d. 88, 123, S. Ct.
I 072 (2003). The United States, has" not filed a response pleading" in this cause.
IN SUPPORT THE PETITIONER STATES AS FOLLOWS:
JURISDICTION - 28 U.S.C. SECTION 2255 MOTION
A. TIMELINESS OF MOVANT'S § 2255 MOTION
,A., cne-yaar pericd of !im1t.Jtion 2pp!ies to n;~~!cn~ !:~c·!..!ght t!11der 28 U.S.C. §

from the latest of:

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2255 This period runs

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(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.28 U.S.C. § 2255(1). With respect to (1),
"[f]inality attaches when this Court affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v.
United States, 537 U.S. 522,527,123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003). "[F]orfederal

( 1)

INEFFECTIVE ASSISTANCE OF COUNSEL
To succeed on a claim of ineffective assistance of counsel, a movant must prove (1) that
counsel's performance was deficient, and (2) that the deficiency was prejudicial to the case.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 80 L. Ed. 2d 674 (1984). To satisfy the
first prong of Strickland, deficient performance, a movant must show that counsel's representation
failed to meet an objective standard of reasonableness, with a strong presumption that counsel's
conduct fell within the range of "reasonable professional assistance." Id. at 688. The deficiency must
be so serious that it did not constitute functioning "counsel" guaranteed by the Sixth Amendment. Id.
at 687. Reasonable assistance is assessed in light of professional norms prevailing at the time the
representation took place. Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010).
To satisfy the second Strickland prong, that counsel's deficient performance resulted in actual
prejudice, the movant must demonstrate a reasonable probability that but for the error, the result
would have differed. Strickland, 466 U.S. at 694. "Reasonable probability" requires a showing
"sufficient to undermine confidence in the outcome." Paul v. United States, 534 F.3d 832, 837 (8th
Cir. 2008) (quoting Strickland, 466 U.S. at 694).

PLEA AGREEMENT
Counsel Peter Moyers provided constitutionally ineffective because he " induced "the Petitioner
Salgado-Lopez to plead guilty on " faulty and erroneously " legal advise. Counsel Moyer also failed to file
a Notice of Appeal, after the Petitioner requesied counsel to file one.
On February 23, 2017, the government's attorney John W. Vaudrevil drafted a proposed plea agreement.
between the Petitioner and the United States in this cause. The Petitioner agreed to enter into this plea
agreement of a sentence of 87 months. On May 18, 2017, the Petitioner appeared for sentencing before
this Court The government at sentencing argued for a sentence of 120 months, and stated that 87 months
was not sufficient. (See, S.T. page(s) 13/14) The Court noted that the Petitioner's actual Guideline range
was 188 to 225 months, a " huge " difference in which counsel Moyer failed to address in the plea agreement
which counsel Moyer" induced" him in pleading guilty and signing the plea agreement. (See, ST page 14).
Counsel Moyer also failed to advise the Petitioner he had a " mandatory minimum " sentence of 120
months. The Court sentenced the Petitioner to 132 months, a" far-cry" from the 87 month months,
counsel Moyer did not argue any Section 3553 Sentencing· Factors nor argued the agreement for 87 months.
The Petitioner can only attack the " voluntary and intelligent " character of a guilty plea based on
the advise of counsel; UNITED STATES -v- RUMERY, 698 F. 2d. 764, 766 (5th. Cir. 1983) to enter a
knowing and voluntary guilty plea, the Defendant must have a full understanding of what the plea
(2)

" connotes " and of its consequences, see, BOYKIN -v- ALABAMA, 395 U.S. 238, 244, 89 S. Ct. 1709
23 L. Ed. 2d. 274 (1969). Simply put, counsel Moyer's provided" faulty and erroneous" legal advise
to Petitioner Salgado-Lopez. See, HILL -v- LOCKHART, 474 U.S. 52, 59, 88 L. Ed. 2d. 20, 3. 106 S.
Ct. 366 (1985).

The Strickland framework for evaluating counsel ineffectiveness applies to advice regarding whether
to plead guilty. Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284, 2010 WL 1222274 (2010);
Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The deficiency portion
of the test remains unchanged. Instead of focusing on the fairness of the trial, the prejudice
component "focuses on whether counsel's constitutionally ineffective performance affected the
outcome of the plea process." Id. at 59. If petitioner pleaded guilty, then petitioner "must show that
there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial."

Plea bargains have become so central to the administration of the criminal justice system that
defense counsel have responsibilities in the plea bargain process, responsibilities that must be met
to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal
process at critical stages. Because ours is for the most pai1 a system of pleas, not a system of
trials, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates
any e1Tors in the pretrial process. (Sotomayor, J., joined by Robe1is, Ch. J., and Scalia, Kennedy,
Thomas, Breyer, Alito, and Kagan, JJ.)
Plea negotiations - right to effective counsel

L Ed Digest: Criminal Law§ 46.4
8. Criminal defendants require effective counsel during plea negotiations. Anything less might
deny a defendant effective representation by counsel at the only stage when legal aid and advice
would help him. (Sotomayor, J., joined by Roberts, Ch. J., and Scalia, Kennedy, Thcimas, Breyer,
Alita, and Kagan, JJ.)
Plea offers - defense counsel's duty

L Ed Digest: Criminal Law§ 46.4
9. The U.S. Supreme Court holds that, as a general rnle, defense counsel has the duty to
communicate fonnal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused. (Sotomayor, J., joined by Robe11s, Ch. J., and Scalia, Kennedy,
Thomas, Breyer, Alito, and Kagan, JJ.)

(3)

COUNSEL MOYER FAILED TO FILE A NOTICE OF APPEAL
The Petitioner states in ROE -v- FLORES-ORTEGA, 528 U.S. 470, 120 S. Ct., 1029, 145 L. Ed 2d.
985 (2000) the United States Supreme Court reaffirmed the "well-settled " rule that an attorney who
fails to file an appeal on behalf of a client who specifically requests one, acts in a professional unreasonable
manner. id at 477, 120 S. Ct. at 1035 (citing RODRIGUEZ -v- UNITED STATES, 395 U.S. 327, 89 S. Ct.
1715, 23 L. Ed. 2d. 340 (1969).
As to the" second prong" of the STRICKLAND TEST, the FLORES-ORTEGA Court held that the failure
to file an appeal that the Petitioner/defendant wanted filed, " denies "the Petitioner his constitutional
right to counsel, at a" critical stage". The plea agreement was a" critical stage" and" ripe" for a
direct appeal concerning " Due Process Right's " of Salgado-Lopez.

" DEFECTIVE INDICTMENT " - " PLAIN ERROR EXISTS "
The Petitioner states that his indictment lacked the necessary allegation's that he acted " knowingly
or willfully " in which the indictment or information must be <1 plain. concise, and definite written
statement of the essential facts constituting the offense charged and must be signed by the attorney
for the government. See, UNITED STATES -v- COTTON, 261 F. 3d. 397 (2001 ), see also, UNITED STATES
RESENDIZ-PONCE, 549 U.S. 102 (2007).

THE INDICTMENT
"To pass constitutional muster, an indictment must contain all the essential elements of the charged
offense." United States v. Kovach, 208 F.3d 1215, 1218 (10th Cir. 2000); see also United States v.
Hathaway, 318 F.3d 1001, 1009 (10th Cir. 2003). Appellate courts review de nova the sufficiency of
an indictment. Kovach, 208 F.3d at 1218. "An indictment is sufficient if it sets forth the elements of
the offense charged, puts the defendant on fair notice of the cl1arges against which he must defend,
and enab_les the defendant to assert a double jeopardy defense." United States v. Bedford, 536 F.3d
1148, 1156 (10th Cir. 2008) (reviewing for plain error) (quoting Hathaway, 318 F.3d at 1009).
"An indictment is legally sufficient if (1) 'each count cont 9 ins the essential elements of the offense
charged,' (2) 'the elements are described with particularity,' and (3) 'the charge is specific enough to
protect the defendant against a subsequent prosecution for the same offense."' United States v.
Fairley, 880 F.3d 198,206 (5th Cir. 2018) ("'[T]he validity of an indictment is governed by practical,
not technical considerations,' and '[t]he basic purpose behind an indictment is to inform a defendant
of the charge against him[.]'").

(4)

Rule 7. The Indictment and the Information
Nature and Contents.
(1) In General. The indictment or information must be a. plain, concise, and definite
written statement of the essential facts constituting the offense charged and must be signed by an
attorney for the govermnent. It need not contain a formal introduction or conclusion. A count
may incorporate by reference an allegation made in another count. A count may allege that the
means by which the defendant connnitted · the offense are unknown or that the defendant
committed it by one or more specified means. For each count, the indictment or infonnation must
give the official or customary citation of the statute, rule, regulation, or other provision of law
that the defendant is alleged to have violated. For purposes of an indictment referred to in section
3282 of title 18, United States Code, for which the id_entity of the defendant is unknown, it shall
be sufficient for the indictment to describe the defendant as an individual whose name is unknown,
but who has a particular DNA profile, as that tem1 is defined in that section 3282.

When a alleged " defective indictment is presented for review, the " plain-error" review applies,
UNITED STATES -v- ROBINSON, 367 F. 3d. 278,285 (5th. Cir. 2004)" Plain error" exists if (1) there is
an error. (2) the error is plain, ... (3} the error affect(s} substantial rights and (4) the error seriously
affects the" fairness, integrity or public reputation of judicial proceedings." UNITED STATES -v- GARCIA-CARRILLO, 749 F. 3d. 376,378 (5th. Cir. 2014}(per curiam}(internal quotation marks and
citation omitted}, and the conduct alleged within the" four corners" of the indictment. see, JONES -vUNITED STATES, 118 S. Ct. 1359 (1999).

Under Federal Rule of Crin1inal Procedure 52(b)'s plain-error test, where there is an "(I) error,
(2) that is plain, and (3) that affects substantial rights," an appellate court may correct an error not
raised at trial, "but only if ( 4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings." Jolmson v United States, 520 US 461, 466-467, 137 L Ed 2d 718, 117
S Ct 154 (internal quotation marks omitted).

Respectfully submitted on this _ _ _ day of January, 2019

Mr. Carmelo Salgado-Lopez# 07395-090
FCI Greenville
P.O. Box 5000
Greenville, IL 62246
PRO SE REPRESENTATION
(5)

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