United States District Court, W.D. Missouri, Southern Division
JOSE A. GARCIA-GONZALEZ, Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 6:13-03064-DGK
ORDER DENYING MOTION FOR POSTCONVICTION
KAYS, CHIEF JUDGE
habeas case arises out of Movant Jose A.
Garcia-Gonzalez's guilty plea to possession with intent
to distribute more than 500 grams of methamphetamine and
being an illegal alien in possession of a firearm.
before the Court is Movant's pro se
“Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence By a Person in Federal
Custody” (Doc. 1). Finding Movant's claims are
meritless and an evidentiary hearing is unnecessary, the
Court denies the motion and declines to issue a certificate
and Procedural History
23, 2013, a grand jury returned a two-count indictment
charging Movant with possession with intent to distribute 500
grams or more of a mixture or substance containing a
detectible amount of methamphetamine, in violation of 21
U.S.C. § 841(a)(1) and (b)(A), and being an alien
illegally or unlawfully in the United States possessing
firearms and ammunition, in violation of 18 U.S.C.
§§ 922(g)(5) and 924(a)(2).
December 16, 2013, Movant pled guilty to both counts, without
a plea agreement, before a magistrate judge. Present with
Movant at the change-of-plea hearing were his attorney, David
Healy, and an interpreter.
outset of the hearing, the magistrate addressed various
complaints Movant had expressed about his attorney. Movant
informed the magistrate that these issues had been resolved,
and that he wanted to keep Mr. Healy as his attorney. The
magistrate proceeded to explain to Movant all the rights he
was waiving by pleading guilty, including the “right to
testify or not testify, as you choose.” Plea Tr. at 5.
The magistrate told Movant, “if you choose not to
testify, it would not be held against you because that is
your right.” Id. Movant acknowledged that he
understood he was waiving these rights. The Government also
recited a summary of the facts it believed it could prove at
trial, and Movant agreed that he did the stated acts and was
guilty of the crimes charged. Finally, before accepting
Movant's guilty plea, the magistrate confirmed with
Movant that he was satisfied with defense counsel and the
presentence investigation report subsequently found an
advisory Guidelines range of 108 to 135 months. The
sentencing hearing was held on April 17, 2014. After agreeing
that the guidelines range was 108 to 135 months, the Court
sentenced Movant to 108 months on each of Counts One and Two,
run concurrently, followed by concurrent terms of two
years' supervised release.
counsel did not file an appeal. However, there is no
evidence-indeed, not even an allegation-that Movant
instructed his attorney to file a notice of appeal. On the
contrary, the Government has submitted an affidavit from
Defense counsel that after the sentencing hearing he provided
a letter to Movant advising him of his right to appeal. The
letter cautioned that the result from seeking an appeal could
be “extremely harsh” compared to the sentence
imposed. Movant never told counsel that he had any interest
signed his § 2255 motion on April 13, 2015, which the
Government concedes is timely filed.
proceeding brought under 28 U.S.C. § 2255, the district
court may “vacate, set aside or correct [a]
sentence” that “was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
raises six claims of ineffective assistance of counsel. To
succeed on a claim of ineffective assistance of counsel, a
movant must show that “(1) trial counsel's
performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a
reasonably competent attorney, and (2) trial counsel's
deficient performance prejudiced the defense.”
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir.
2008) (citing Strickland v. Washington, 466 U.S.
668, 687-94 (1984)). Failure to satisfy either prong is
fatal, and the court need not ...