United States District Court, S.D. Indiana, Indianapolis Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
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.
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.
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.
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; (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.
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].
“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).
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.
Ineffective Assistance of Counsel Claim
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.
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 ...