United States District Court, W.D. Texas, San Antonio Division
JUAN GABRIEL GALLEGOS, No. 34873-380,
UNITED STATES OF AMERICA
RODRIGUEZ UNITED STATES DISTRICT JUDGE
the Court are Movant Juan Gabriel Gallegos'
(“Gallegos”) pro se Motion to Vacate
pursuant to 28 U.S.C. § 2255 (ECF No. 97), his
Memorandum in support (ECF No. 98), and the Government's
Response (ECF No. 102). Upon consideration, the § 2255
motion (ECF No. 97) is DENIED.
jury indictment returned April 16, 2014, charged Gallegos and
a co-defendant with conspiracy to distribute and to possess
with intent to distribute a mixture or substance containing
500 grams or more of a detectable amount of cocaine, in
violation of 21 U.S.C. §§ 841 (a)(1) and
841(b)(1)(B) (Count I); and aiding and abetting the
possession with intent to distribute a mixture or substance
containing 500 grams or more of a detectable amount of
cocaine, in violation of 21 U.S.C. §§ 841 (a)(1),
841 (b)(1)(B) and 18 U.S.C. § 2 (Count II). (ECF No.
23). Gallegos, who had appointed counsel, agreed to plead
guilty to Count I of the indictment in exchange for having
the remaining count dismissed. (ECF No. 66).
April 9, 2015, at the conclusion of a Rule 11 hearing,
Gallegos pleaded guilty. (ECF No. 64). A Presentence
Investigation Report (“PSR”) was prepared, which
assessed Gallegos' offense level as 23 and his criminal
history category as I, and calculated a guideline sentencing
range of 46 to 57 months. (ECF No. 70). After Gallegos entered
his plea but before being sentenced, he sought to substitute
his appointed counsel with retained counsel. (ECF No. 76).
The motion was granted and Pascual Madrigal, Gallegos'
retained counsel, then filed a motion to withdraw
Gallegos' plea, claiming Gallegos was innocent of the
charges and had not been properly advised regarding the
immigration consequences of a felony conviction. (ECF No.
79). Gallegos' motion was denied (ECF No. 80), and
Gallegos was sentenced to 60 months' imprisonment,
forty-eight months' supervised release, and a $100
special assessment fee (ECF No. 91).
counsel filed a motion for new trial, alleging the Court
erred in refusing to allow Gallegos to withdraw his plea, and
asserting the evidence was insufficient to support
Gallegos' guilty plea. (ECF No. 95). Gallegos' motion
for new trial was denied and no appeal was filed. Instead, in
November of 2017, Gallegos filed the present motion pursuant
to 28 U.S.C. § 2255, maintaining his attorney rendered
ineffective assistance of counsel in failing to appeal his
conviction and sentence. (ECF No. 97).
federal defendant may move to vacate, set aside, or correct
his sentence if: (1) the imposition of the sentence was in
violation of the Constitution or the laws of the United
States; (2) the District Court that imposed the sentence
lacked jurisdiction; (3) the sentence imposed was in excess
of the maximum authorized by law; or (4) the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). A one-year period of limitation applies to a
§ 2255 motion. See Kiser v. Johnson, 163 F.3d
326, 327-28 (5th Cir. 1999). The limitation period runs from
the latest of:
1) the date on which the judgment of conviction becomes
2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
28 U.S.C. § 2255 (2016).
Gallegos did not appeal his conviction, it became final on
July 19, 2016, fourteen days after entry of the July 5, 2016
judgment. See Fed. R. App. P. 4(b)(1)(A)(i) (stating
appeal must be filed within fourteen days of judgment).
Therefore, Gallegos had one year, or at the latest, until
July 19, 2017 to file his § 2255 motion; Gallegos ...