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Martinez-Duque v. United States

United States District Court, S.D. Texas, Houston Division

May 5, 2017

HERCULANO MARTINEZ-DUQUE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. H-14-629-01

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         Petitioner, Herculano Martinez-Duque, has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody ("§ 2255 Motion") (Docket Entry No. 45), [1] The United States has filed a Response to Motion for Relief Under 28 U.S.C. § 2255 and Motion for Summary Judgment (Docket Entry No. 51).

         On January 30, 2015, petitioner pleaded guilty to illegal reentry by a previously deported alien after a felony conviction in violation of 8 U.S.C. §§ 1326(a) and (b)(2); and on April 16, 2015, petitioner was sentenced within the advisory Sentencing Guideline range to 57 months in prison and three years of supervised release (Judgment in a Criminal Case, Docket Entry No. 27). On January 6, 2016, petitioner's sentence was affirmed on appeal (Judgment, United States Court of Appeals, Docket Entry No. 37).

         In his § 2255 Motion petitioner alleges that his trial counsel provided ineffective assistance by promising petitioner that he would receive a sentence of 36 months in custody if he pleaded guilty and that the government engaged in misconduct by falsely stating that petitioner would be sentenced to 3 6 months in custody if he pleaded guilty.

         At his Rearraignment on January 30, 2015, the following colloquy occurred between the court and petitioner.

THE COURT: Would you state your name, sir?
MARTINEZ-DUQUE: Herculano Martinez-Duque.
THE COURT: I understand you wish to plead guilty to the charge of illegal re-entry after deportation in violation of Title 8, United States Code, Section 1326(a) and (b). Is that correct?
MARTINEZ-DUQUE: Yes, sir.
THE CLERK: Do you solemnly swear that the testimony that you're about to give in the case now before the court shall be the truth, the whole truth, and nothing but the truth so help you God?
MARTINEZ-DUQUE: Yes .
THE COURT: Now, both of you will please listen carefully. Before I can accept your guilty pleas, I must ask each of you a number of questions. It is very important that you listen carefully to all of my questions, and that you answer all of my questions truthfully and completely, for several reasons.
First, since you are now under oath, if you give an untrue answer to a question, you could be charged with a separate crime of perjury.
Do each of you understand that?
MARTINEZ-DUQUE: Yes, sir.
THE COURT: Also, before I can accept your guilty plea, I must make a number of findings. My findings are based on your answers to my questions. In order for my findings to be correct, it is therefore necessary that all of your answers to my questions be truthful, and complete.
Mr. Martinez, do you understand that?
MARTINEZ-DUQUE: Yes, sir.
THE COURT: Will each of you agree with me this morning that if you do not understand anything that I say, you will stop and ask me to repeat or explain ...

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