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Abrego-Cerna v. United States

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

March 25, 2019

ESTEBAN ABREGO-CERNA, Pe titioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE

         Esteban Abrego-Cerna, a Mexican citizen, reentered the United States after having been deported twice before. He was caught in the United States with heroin and incurred his second conviction in the United States for felony drug dealing. He pleaded guilty to illegal reentry with an aggravated felony conviction, 8 U.S.C. §§ 1326(a) and 1326(b)(2), and was sentenced to a term of 41 months' imprisonment. Although he waived the right to challenge his conviction and sentence on appeal or in post-conviction proceedings in his plea agreement, Mr. Abrego-Cerna is now before the court requesting that the court vacate his sentence under 28 U.S.C. § 2255 [Doc. No. 37]. For the following reasons, the court denies Mr. Abrego-Cerna's motion.

         The rules governing petitions filed under 28 U.S.C. § 2255 provide that once a motion is filed:

The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Mr. Abrego-Cerna's motion can be resolved without a hearing. See Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293 (7th Cir. 1995).

         Mr. Abrego-Cerna presents three grounds in support of his 2255 petition to vacate and sentence: (1) that he should have been placed in the fast-track program;[1] (2) that his poor English proficiency hindered his ability to fully understand the proceedings against him; and (3) that his attorney provided him ineffective assistance of counsel because he told Mr. Abrego-Cerna he would get a lower sentence.[2]

         A. Appeal Waiver

         Mr. Abrego-Cerna's plea agreement, signed by Mr. Abrego-Cerna, his attorney Joseph Cleary, Assistant United States Attorneys James Warden, and the U.S. Attorney's office's chief of the criminal division Winfield Ong, contains the following language:

the Defendant expressly agrees not to contest, or seek to modify, the Defendant's conviction or sentence or the manner in which either was determined in any proceeding, including but not limited to, an action brought under 18 U.S.C. § 3582 or 28 U.S.C. § 2255. . . . As concerns the Section 2255 waiver, the waiver does not encompass claims, either on direct or collateral review, that the Defendant received ineffective assistance of counsel.

[Doc No. 19 at ¶ 23].

         A court “will enforce an appeal waiver in a plea agreement if the terms of the waiver are clear and unambiguous and the defendant knowingly and voluntarily entered into the agreement.” United States v. Worden, 646 F.3d 499, 502 (7th Cir. 2011). “To bar collateral review, the plea agreement must clearly state that the defendant waives his right to collaterally attack his conviction or sentence in addition to waiving his right to a direct appeal.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011) (italics omitted). “[A] defendant's freedom to waive his appellate rights includes the ability to waive his right to make constitutionally-based appellate arguments” and “preclude appellate review even of errors that are plain in retrospect.” United States v. Smith, 759 F.3d 702, 707 (7th Cir. 2014).

         Mr. Abrego-Cerna declared that he was “freely and voluntarily pleading guilty in this case, ” [Doc No. 19 at ¶ 27(g)], and swore under oath at the change of plea hearing that he understood that he was giving up the right to appeal or bring a Section 2255 challenge, unless it he was pursuing an ineffective assistance of counsel claim. [Doc. No. 39 at 10]. His sworn statements at the change of plea hearing are presumed truthful. Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000). The waiver was knowing and voluntary, so the waiver “must be enforced, ” Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008), and the court can't reach the merits of Mr. Abrego-Cerna's arguments that he should have been placed in the fast-track program and that his poor English proficiency hindered his ability to fully understand the proceedings against him.[3]

         B. Ineffective Assistance of Counsel Claim

         The plea agreement's appeal waiver contains an exception that allows Mr. Abrego-Cerna to challenge his sentence in a § 2255 petition based on ineffective assistance of counsel. Mr. Abrego-Cerna presents a claim not barred by the waiver in his plea agreement: that his attorney provided him ineffective assistance of counsel because he promised Mr. Abrego-Cerna he would get a lower sentence.

         The Sixth Amendment guarantees criminal defendants the right to constitutionally sufficient representation by an attorney. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on an ineffective assistance of counsel claim, Mr. Abrego-Cerna must show both that his attorney's performance “fell below an objective standard of reasonableness” and that there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Id. at 687-688. This is a difficult standard to meet: Mr. Abrego-Cerna must show both “that counsel made errors so serious that ‘counsel' was not functioning as the counsel guaranteed the defendant ...


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