United States District Court, D. Utah, Central Division
MEMORANDUM DECISION ADDRESSING 28 U.S.C. § 2255
SAM, UNITED STATES DISTRICT COURT SENIOR JUDGE
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.
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
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.
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.
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.
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).
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.
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).
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 ...