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Paz v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 21, 2018

RAUL PALACIOS-DE PAZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.

         For the 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.

         I. The § 2255 Motion

         Background

         On 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.

         On June 9, 2015, Mr. Palacios-De Paz filed a Petition to Enter a Plea of Guilty. Crim. Case, dkt. 28. No. plea agreement was filed.

         On 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.

         The 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.

         On 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).

         On 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.

         Issues

         A 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).

         Mr. 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 failed ...


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