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Molina-Carias v. United States

United States District Court, D. Maine

November 22, 2016

JOSE MOLINA-CARIAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Jose Molina-Carias moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 51.) Following a guilty plea, Petitioner was convicted of reentry into the country following a prior removal, 8 U.S.C. § 1326(a), (b)(2), and the Court sentenced Petitioner to 48 months in prison. (Judgment, ECF No. 48 at 2; Indictment, ECF No. 1.) Petitioner did not appeal from the judgment or the sentence.

         Petitioner asserts the following grounds for his § 2255 motion. First, he contends that he did not appeal from the judgment or sentence “because of poor legal advice.” (Motion at 4.) Petitioner more specifically contends that his counsel was not available for consultation and that his efforts to communicate with counsel were frustrated by a language barrier. Second, Petitioner maintains that his sentence range under the United States Sentencing Guidelines (U.S.S.G.) was erroneously calculated due to the inclusion in his criminal history of offenses more than 15 years old, which alleged error was overlooked by his counsel. (Motion at 5.) Finally, Petitioner claims that he did not understand the plea agreement offered to him because he received no legal advice regarding the agreement. (Id.)

         Through its response to the motion, the Government asks the Court to dismiss Petitioner's motion. (Response at 1, ECF No. 63.) Following a review of the record and the parties' written arguments, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         On October 7, 2014, the Grand Jury returned a one-count indictment charging Petitioner with unlawful reentry following a prior removal from the United States, in violation of 8 U.S.C. § 1326(a), which action followed a prior conviction on an aggravated felony charge, an allegation material to the statutory maximum sentence, as set forth in 8 U.S.C. § 1326(b)(2). (Indictment, ECF No. 1.)

         A. Rule 11 Change of Plea Proceeding

         On December 1, 2014, the Government filed on the court's docket an agreement to plead guilty. The agreement bore the signatures of Petitioner and his counsel, whose signatures were dated November 11, 2014. (ECF No. 16.) The Court scheduled a change of plea hearing and Petitioner appeared in court on December 10, 2014, to change his plea. The Court provided an interpreter for the proceeding. As reflected on the docket and in the transcript prepared by the court reporter, Petitioner changed his plea to guilty on that date. (Minute Entry, ECF No. 21; Transcript of Rule 11 Proceeding at 4, ECF No. 65.)

         During the plea colloquy, upon the Court's inquiry, Petitioner responded affirmatively to establish the following facts:

• Petitioner understood what was happening in the change of plea hearing;
• Petitioner's counsel explained the consequences of the change of plea;
• Petitioner wished to change his plea to guilty;
• Petitioner pled guilty because he actually committed the crime charged in the indictment;
• Petitioner received a translated copy of the indictment and reviewed it with counsel, who explained the elements and nature of the crime charged, and the penalties that could be imposed;
• Petitioner understood the charge, which charge the Court explained at the hearing;
• Petitioner understood the mandatory minimum and maximum sentences upon a guilty plea, which sentences the Court explained at the hearing;
• Petitioner understood that his guilty plea could have consequences related to his ability to remain in or reenter the United States;
• Petitioner understood the important trial rights he would waive by pleading guilty, which rights the Court explained at the hearing;
• Petitioner understood he would waive the right not to incriminate himself based on the Court's questions concerning the prosecution version;
• Petitioner chose to plead guilty;
• Petitioner received, with the assistance of an interpreter, a translation of the prosecution version, and he discussed the ...

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