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Fuentes v. United States

United States District Court, D. Maine

May 10, 2018



          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Guillermo Fuentes moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 53.) Petitioner pled guilty and was convicted in 2014 of knowingly hiring undocumented aliens, and of making false statements to the Government; the Court sentenced Petitioner to 37 months in prison.[1](Judgment, ECF No. 44 at 1-2.)[2] Petitioner did not appeal from the judgment. (Docket Record.) Petitioner alleges he began serving his prison term on November 21, 2014, and he completed it on July 26, 2017.[3] (Motion at 3.) He asserts he was taken into custody by the United States Immigration and Customs Enforcement (“ICE”) when he was released from the Bureau of Prisons. (Id.)

         Petitioner alleges that during the plea negotiations, Government attorneys represented to defense counsel, who in turn advised Petitioner, that “the proposed convictions were not of the kind that would subject [Petitioner and his co-defendant, Hector Fuentes] to removal and, therefore, no ICE detainer would result from the convictions.” (Motion at 2.) He further alleges counsel's performance was substandard “in that [counsel] relied upon the representations of the government about whether the proposed convictions would result in deportation, without documenting those representations or having the representations included in a plea agreement . . . .” (Id. at 8.) Petitioner contends he would not have pled guilty if he had not received faulty advice. (Id.)

         Following a review of Petitioner's motion and the Government's request that relief be denied, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         In March 2013, a jury found Petitioner guilty of the counts alleged in the superseding indictment: conspiracy to harbor undocumented aliens for profit, 8 U.S.C. § 1324(a)(1)(A)(iii) (Count 1); harboring undocumented aliens for profit, 8 U.S.C. § 1324(a)(1)(A)(iii), (B)(i) (Counts 6, 7); and aiding and abetting document fraud, 18 U.S.C. §§ 2, 1546(a) (Count 8). (No. 2:12-cr-00050-DBH-2, Superseding Indictment, ECF No. 57; Jury Verdict Form, ECF No. 153.) In August 2013, the Court granted Petitioner's motion for a new trial, based on juror misconduct. (No. 2:12-cr-00050-DBH-2, Redacted Decision and Order on Joint Motion to Set Aside Verdict, ECF No. 234.)

         In June 2014, the Court conducted a plea hearing pursuant to Fed. R. Crim. P. 11; the Court accepted Petitioner's guilty plea to Counts 1 and 3 of an information that charged Petitioner with knowingly hiring undocumented aliens, 8 U.S.C. §§ 1324(a)(3), 1324a(h)(3), 18 U.S.C. § 2 (Count 1); and with making false statements to the Government, 18 U.S.C. § 1001 (Count 3).[4] (No. 2:14-cr-00047-DBH-2, Waiver of Indictment, ECF No. 2; Information, ECF No. 3; Minute Entry, ECF No. 20; Plea Tr., ECF No. 50 at 43.)

         On October 20, 2014, the Court sentenced Petitioner to concurrent prison terms of 37 months on each of the two counts, to be followed by concurrent terms of two years of supervised release. (No. 2:14-cr-00047-DBH-2, Judgment, ECF No. 44 at 2.) On the same date, the Court ordered that Petitioner be discharged on the counts alleged against him in the superseding indictment, based on the Court's grant of the Government's motion to dismiss. (No. 2:12-cr-00050-DBH-2, Order of Discharge, ECF No. 260.)

         Petitioner filed his section 2255 motion on October 30, 2017. (Motion at 1.)

         On January 25, 2018, the parties filed a joint agreement regarding the section 2255 motion. (Joint Agreement, ECF No. 61.) The agreement states that Petitioner received a notice that he is subject to removal from the United States, pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), and that he must appear before an immigration judge.[5](Id. at 2.) The agreement also provides that “[t]he parties now understand and believe that the immigration authorities assert as a basis for removal Fuentes's conviction under 18 U.S.C. § 1001 (Count Three), and not his conviction under 8 U.S.C. §§ 1324(a)(3) and 1324a(h)(3) (Count One).”[6] (Id. at 2-3.) The Government agreed to waive its right to argue the motion was untimely filed under section 2255(f)(1), and Petitioner agreed to amend his section 2255 motion to limit his claim to his request that the Court vacate the conviction for making false statements to the Government (Count 3). (Id. at 3.)

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         When a petitioner raises a claim “for the first time on habeas, he must show both ‘cause' that excuses the procedural default and ‘actual prejudice' resulting from the alleged error.” Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). Alternatively, a petitioner may demonstrate actual innocence as a basis for habeas relief. Bousley, 523 U.S. at 622. “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Id. at 623.[7]

         In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the federal constitutional standard by which claims of ineffective assistance of counsel are evaluated; Strickland requires a petitioner to demonstrate that “counsel's representation fell below an objective standard of reasonableness, ” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 688, 694. A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one . . . .” Id. at 697. If a petitioner's “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

         A petitioner must establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). “[A] habeas petitioner is not automatically entitled to a hearing and normally should not receive one if his allegations are ‘vague, conclusory, or palpably incredible.'” David, 134 F.3d at 478 (quoting Machibroda v. United States,368 U.S. 487, 495 (1962)). The First Circuit has held that a Petitioner who “fails to reasonably substantiate his ineffective assistance of counsel claim with any material issues of fact . . . has not ‘overcome the presumption of regularity which the record . . . imports . . . .'” United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (quoting Walker v. Johnston, 312 U.S. 275, 286 (1941)). When “a petition for federal habeas relief is presented to the judge who ...

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