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Gallegos v. United States

United States District Court, W.D. Texas, San Antonio Division

June 15, 2018

JUAN GABRIEL GALLEGOS, No. 34873-380,
v.
UNITED STATES OF AMERICA

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         Before 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.

         BACKGROUND

         A grand 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).

         On 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.[1] (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).

         Gallegos' 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).

         A. Legal Standard

         A 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 final;
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 governmental action;
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 due diligence.

28 U.S.C. § 2255 (2016).

         Because 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 ยง 2255 motion; Gallegos ...


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