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Hernandez-Lopez v. United States

United States District Court, D. Utah, Central Division

April 4, 2018

GUSTAVO HERNANDEZ-LOPEZ, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM DECISION ADDRESSING 28 U.S.C. § 2255 MOTION

          DAVID SAM, UNITED STATES DISTRICT COURT SENIOR JUDGE

         INTRODUCTION

         Mr. Gustavo Hernandez-Lopez, the petitioner in the instant case, plead guilty to “knowingly and intentionally possess[ing] with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin, ” and was sentenced to 120 months in prison on August 24, 2016. No. 2:15-cr-00691-DS-1, ECF No. 34, 74, 93. As part of his plea agreement, he also agreed to waive his right to appeal and stated that he was satisfied with his counsel. Id. at ECF No. 74.

         Despite his agreement, Mr. Hernandez-Lopez filed a pro se appeal of his sentence, arguing that his counsel was ineffective for both allowing him to sign an agreement that waived his right to appeal as well as for an alleged failure to contest the drug quantity. United States v. Hernandez-Lopez, 694 Fed.Appx. 651 (10th Cir. 2017). The Tenth Circuit, however, ruled that ineffective counsel claims should be brought in collateral proceedings and denied the appeal. Id. at 652.

         Now before the court is Mr. Hernandez-Lopez's 28 USC § 2255 Motion to Vacate, Set Aside, or Correct Sentence based on essentially the same grounds. ECF No. 1. His motion claims ineffective assistance regarding the waiver of appeal contained in his plea deal and failure to contest the drug quantity that he pled guilty to. Id. at 6.

         DISCUSSION

         The Supreme Court has held that there is a one-year statute of limitations for any § 2255 motion. See Dodd v. United States, 545 U.S. 353, 357. Mr. Hernandez-Lopez executed this motion on August 7, 2017, just under a year from when his judgment was entered on August 24, 2016. ECF No. 1 at 9. His motion, therefore, is timely.

         28 U.S.C.A. § 2255(b) states that notice of the motion must be served on the United States attorney's office “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Mr. Hernandez-Lopez's claims are all negated by his failure to provide evidence as well as his plea agreement itself, and the court finds that he is indeed entitled to no relief in this instance. See No. 2:15-cr-00691-DS-1, ECF No. 34.

         Plea agreements are generally binding. The United States Supreme Court has made this abundantly clear:

“(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).”

Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotations omitted, emphasis added). Therefore, only a plea that has been invalidated by failure to disclose consequences, threats, misrepresentations, etc. is “open to collateral attack.” See Machibroda v. United States, 368 U.S. 487, 493 (1962).

         This has also been reaffirmed by the Tenth Circuit, which said in United States v. Falcon-Sanchez that “[a] plea agreement waiver of post-conviction rights is ‘generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made.'” 416 Fed.Appx. 728, 729 (10th Cir. 2011) (quoting United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.2001)). And in regards to policy, the Supreme Court has stated that, “[s]olemn declarations in open court carry a strong presumption of verity, ” and that guilty pleas should be “accorded a great measure of finality.” Blackledge v. Allison, 431 U.S. 63, 72-4 (U.S. 1977).

         The Supreme Court has further held that “a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not ‘a reasonably competent attorney.'” Strickland v. Washington, 466 U.S. 668, 687 (1984). Acting under Strickland, the Tenth Circuit has stated that such ineffectiveness of counsel can be determined “only by showing that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Phillips v. Carver, No. 94-4165 2, 3 (10th Cir. 1995).

         There is nothing in Mr. Hernandez-Lopez's § 2255 motion to show that this is the case. He has made no effort to argue that his plea agreement is invalid. ECF No. 1. He has not argued a failure by counsel to warn him of the “direct consequences, ” nor that anything untoward (threats, misrepresentation, improper promises, etc.) induced him to make this deal. See id. In fact, he makes no arguments whatsoever to support his bare claims of ineffective counsel. Id. Rather, Mr. Hernandez-Lopez (in filing this petition) filled out a pre-set ...


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