United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
reasons explained in this Entry, the motion of Raul
Palacios-De Paz for relief pursuant to 28 U.S.C. § 2255
must be denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
The § 2255 Motion
February 19, 2015, Mr. Palacios-De Paz was charged in a
one-count Indictment in the Southern District of Indiana.
United States v. Palacios, 1:15-cr-0037-SEB-DML-1,
Crim. Case, dkt. 15. Mr. Palacios-De Paz, after having been
deported and removed from the United States to Mexico
subsequent to a conviction for an aggravated felony, was
found in the United States without consent to reapply for
admission to the United States, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Id.
9, 2015, Mr. Palacios-De Paz filed a Petition to Enter a Plea
of Guilty. Crim. Case, dkt. 28. No. plea agreement was filed.
December 22, 2015, the Court held a change of plea and
sentencing hearing. Crim. Case, dkt. 37. Mr. Palacios-De Paz
was advised of his rights and the possible penalties.
Id. The Court accepted the parties' Stipulated
Factual Basis as an adequate basis for the plea and adjudged
Mr. Palacios-De Paz guilty on Count 1 of the Indictment and
of a supervised release violation. Id.
Court sentenced Mr. Palacios-De Paz to 46 months'
imprisonment on Count 1 and 10 months for the supervised
release violation to run concurrent. Id. Mr.
Palacios-De Paz's imprisonment was ordered to be followed
by 3 years of supervised release. Id. The Court
entered judgment of conviction on December 30, 2015. Crim.
Case, dkt. 38.
January 13, 2016, Mr. Palacios-De Paz filed a notice of
appeal. Crim. Case, dkt. 40. Mr. Palacios-De Paz's
counsel filed a motion to withdraw the appeal and the Seventh
Circuit granted this request, finding the appeal frivolous.
See United States v. Palacios-De Paz, 667 Fed.Appx.
547, 549 (7th Cir. July 22, 2016).
December 8, 2016, Mr. Palacios-De Paz filed this motion for
post-conviction relief pursuant to 28 U.S.C. § 2255.
Dkt. 1. The United States has responded and no reply was
filed. The action is ripe for resolution.
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974).). A court may grant relief from a
federal conviction or sentence pursuant to § 2255
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). “Relief under
§ 2255 is available only in extraordinary situations,
such as an error of constitutional or jurisdictional
magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.”
United States v. Coleman, 763 F.3d 706, 708 (7th
Cir. 2014) (internal quotation omitted).
Palacios-De Paz brings three claims of ineffective counsel:
1) counsel failed to request a downward departure under the
Fast-Track Program; 2) counsel failed to argue that his
sentence was not substantially reasonable; and 3) counsel