Alencastro-Mejia v. United States
| Decision Date | 31 October 2012 |
| Docket Number | No. C 11-4016-MWB,No. CR 09-4034-MWB,C 11-4016-MWB,CR 09-4034-MWB |
| Parties | CESAR ALBERTO ALENCASTRO-MEJIA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
ORDER RE PETITIONER'S
TABLE OF CONTENTS
D. Certificate Of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
This case is before me on petitioner Cesar Alberto Alencastro-Mejia's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on February 15, 2011; on Alencastro-Mejia's Supplemental Brief (Civ. docket no. 17), filed on November 30, 2011; on respondent's Resistance and Memorandum In Support Of Government's Resistence To Defendant's Motion (Civ. docket no. 19), filed on December 23, 2011; and on Alencastro-Mejia's Reply Brief (Civ. docket no. 20) filed on January 30, 2012. Alencastro-Mejia claims that the attorney who represented him at the trial level provided him with ineffective assistance of counsel in several ways. The respondent denies that Alencastro-Mejia is entitled to any relief on his claims.
On June 18, 2009, Alencastro-Mejia was charged by a two-count Indictment (Crim. docket no. 3). The first count of the Indictment charged Alencastro-Mejia with conspiracy to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of Title 21, United States Code, Sections 841(a)()1) and 841(b)(1)(B). See Crim. docket no. 3. Alencastro-Mejia was not named in count two of the Indictment. On June 30, 2009, Alencastro-Mejia appeared in front of then Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to count one of the Indictment. See Crim. docket no. 8.
On September 17, 2009, Alencastro-Mejia appeared before Judge Zoss to change his plea to guilty to count one of the Indictment. See Crim. docket no. 20. Judge Zossfiled a Report And Recommendation Concerning Plea Of Guilty (Crim. docket no. 22), on September 17, 2009, recommending that Alencastro-Mejia's plea of guilty be accepted. Also on September 17, 2009, the government filed a Superseding Indictment (Crim. docket no. 23), extending the dates of the conspiracy in count one and adding the names of additional co-conspirators. I entered an Order Concerning Magistrate's Report And Recommendation Regarding Defendant's Guilty Plea (Crim. docket no. 62) on October 8, 2009, thereby accepting Alencastro-Mejia's guilty plea to count one of the original Indictment.
On January 15, 2010, Alencastro-Mejia, through counsel, filed a Motion For Variance (Crim. docket no. 125), accompanied by a supporting brief. Alencastro-Mejia argued that he should benefit from a downward variance based on his unfortunate upbringing and his physical and mental health. See Crim. docket no. 125-2, at 2-4.
Alencastro-Mejia appeared before me on January 15, 2010, for a sentencing hearing. See Crim. docket no. 126. Alencastro-Mejia's motion for downward variance was the only contested issue at the time of sentencing. Sent. Trans. at 2.
I found that Alencastro-Mejia's offense level was 29, with a criminal history category of 2. Sent. Trans. at 22. This established Alencastro-Mejia's guideline range as 97 to 121 months. Sent. Trans. at 22.
As to Alencastro-Mejia's motion for downward variance, I found that a variance was appropriate in his case, based on Alencastro-Mejia's mental issues, abuse as a child, and lack of significant criminal history. Sent. Trans. at 22. I determined that the appropriate sentence, after consideration of the Title 18 § 3553(a) factors, was at the low end of the guideline range, and reduced his sentence by a further 15 months. Sent. Trans. at 22. I sentenced Alencastro-Mejia to 82 months. Sent. Trans. at 22.
On February 15, 2011, Alencastro-Mejia filed a Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 3). On November 30, 2011, counsel appointed to represent Alencastro-Mejia on his § 2255 Motion filed a Supplemental Brief In Support Of Motion To Vacate Sentence And Judgment (Civ. docket no. 17). The respondent filed a Resistance And Memorandum In Support Of Government's Resistance To Defendant's Motion Under 28 U.S.C. § 2255 (Civ. docket no. 19), on December 23, 2011. Alencastro-Mejia filed, by counsel, a Reply Brief (Civ. docket no. 20), on January 30, 2012.
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (); Bear Stops v. United States, 339 F.3d777, 781 (8th Cir. 2003) (). Thus, a motion pursuant to § 2255 "is 'intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One "well established principle" of § 2255 law is that "'[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a "miscarriage of justice," although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence," and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 . Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that 'a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration "'that, in light of all the evidence, it is more likely than not that no...
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