Lira-Zaragoza v. United States
| Decision Date | 27 June 2013 |
| Docket Number | No. CR 12-4044-MWB,No. C 13-4001-MWB,C 13-4001-MWB,CR 12-4044-MWB |
| Parties | GONZALO LIRA-ZARAGOZA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
PETITIONER'S SECTION 2255
MOTION
TABLE OF CONTENTS
This case is before me on petitioner Gonzalo Lira-Zaragoza's Pro Se Motion For Relief Pursuant to Federal Rule Of Civil Procedure 60(b) and 52(B)(Civ. docket no. 1), filed on January 2, 2013, which I have construed as a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. See Civ. docket no. 2. Lira-Zaragoza claims that his trial counsel provided him with ineffective assistance in various ways. The respondent denies that Lira-Zaragoza is entitled to any relief on his claims.
On March 21, 2012, Lira-Zaragoza was charged by a one-count Indictment (Crim. docket no. 2) with illegally re-entering the United States after a prior deportation. On March 30, 2012, Lira-Zaragoza appeared in front of then Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to the Indictment. See Crim. docket no. 10.
On April 26, 2012, Lira-Zaragoza appeared before Judge Zoss to change his plea to guilty to the Indictment. See Crim. docket no. 21. On April 26, 2012, Judge Zoss filed his Report And Recommendation Concerning Plea Of Guilty, recommending acceptance of Lira-Zaragoza's guilty plea. See Crim. docket no. 22. I filed an Order Regarding Magistrate's Report And Recommendation Concerning Defendant's Guilty Plea, accepting Lira-Zaragoza's guilty plea, on April 26, 2012. See Crim. docket no. 25.
On July 25, 2012, Lira-Zaragoza, by counsel, filed a Motion For Downward Variance (Crim. docket no. 34), based on the remoteness in time of the prior felony that led to Lira-Zaragoza's deportation from the United States and the instant offense. See Petitioner's Brief at 3.
Lira-Zaragoza appeared before me on August 1, 2012, for a sentencing hearing. See Crim. docket no. 35. I found that Lira-Zaragoza's total offense level was 21 with a criminal history category of IV, for an advisory United States Sentencing Guideline range of 57 to 71 months. See Sent. Trans. at 11. I granted Lira-Zaragoza's Motion for downward variance, and sentenced Lira-Zaragoza to 50 months. See Sent. Trans. at 12.
On January 2, 2013, Lira-Zaragoza filed a Pro Se Motion for relief (Civ. docket no. 1) ("Motion"), which I subsequently construed as a motion under 28 U.S.C. § 2255. See docket no. 2. The Respondent filed an Answer (Civ. docket no. 3), on January 4, 2013. On April 8, 2013, counsel appointed to represent Lira-Zaragoza in this matter filed a Petitioner's Brief (Civ. docket no. 6), addressing the issues raised by Lira-Zaragoza. The Respondent filed its Response To Defendant's Motion (Civ. docket no. 7), on April 16, 2013.
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.3d 777, 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 actualprejudice, 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 reasonable juror would Have convicted [the petitioner].'" Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37 (2006). "'This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the challenged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
With these standards in mind, I turn to analysis of Lira-Zaragoza's claims for § 2255 relief.
Even though ineffective assistance of counsel claims may be raised on a § 2255 motion, because of the advantages of that form of proceeding for hearing such claims,see Massaro v. United States, 538 U.S. 500, 509, that does not mean that an evidentiary hearing is required for every ineffective assistance claim presented in a § 2255 motion. A district court may not "grant a prisoner § 2255 relief without resolving outstanding factual disputes against the government." Grady v. United States, 269 F.3d 913, 919 (8th Cir. 2001) (emphasis in original). Where a motion raises no disputed questions of fact, however, no hearing is required. See United States v. Meyer, 417 F.2d 1020, 1024 (8th Cir. 1969). In this case, I conclude that no evidentiary hearing is required on any issue because the record either conclusively resolves all material factual disputes against the government or raises no disputed questions of fact that are material to my decision.
Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice, or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993). "[C]ause and prejudice" to overcome such default may include "ineffective assistance of counsel." See Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005). The Eighth Circuit Court of Appeals has expressly recognized that a...
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