United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE.
November 25, 2014, petitioner Jose Humberto Jimenez-Gomez
(“Jimenez-Gomez”) filed a motion under 28 U.S.C.
§ 2255 challenging the sentence imposed by this court
upon revocation of his supervised release. Doc. No.
This court entered an order directing Jimenez-Gomez to file a
supplement to his § 2255 motion clarifying his claims.
Doc. No. 2. Jimenez-Gomez filed a supplement to the §
2255 motion on December 30, 2014 (Doc. No. 3), and filed a
second supplement on February 17, 2015 (Doc. No. 7). The
Government filed its response to the § 2255 motion on
May 5, 2015. Doc. No 11. After careful consideration of the
§ 2255 motion, the facts of the case, and the governing
law, the court concludes that the motion should be denied
without an evidentiary hearing. See Rule 8(a),
Rules Governing Section 2255 Proceedings in the United
States District Courts.
September 9, 2013, Jimenez-Gomez, who is a citizen of Mexico,
pled guilty in this court to illegal reentry after being
deported from the United States, in violation of 8 U.S.C.
§ 1326(a). See Case No. 3:13cr112-MEF, Doc.
Nos. 22 & 51. On January 2, 2014, the court sentenced
Jimenez-Gomez to time served and one year of supervised
release. Id., Doc. Nos. 34 & 50. On January 31,
2014, Jimenez-Gomez was deported to Mexico.
13, 2014, U.S. Border Patrol agents encountered Jimenez-Gomez
near Andrade, California. See Doc. No. 11-4 at 2-3.
Jimenez-Gomez was arrested after the agents determined he was
a Mexican citizen and illegally in the United States.
Id. On May 15, 2014, in Case No. 14-15196M (S.D.
Cal.), Jimenez-Gomez pled guilty in the United States
District Court for Southern District of California to
entering the United States at a time or place other than as
designated by immigration officers, in violation of 8 U.S.C.
§ 1325(a)(1). See Doc. No. 11-5. The California
federal district court sentenced Jimenez-Gomez to 180
days' imprisonment. Id. at 2.
his sentencing in Case No. 14-15196M (S.D. Cal.),
Jimenez-Gomez was returned to the Middle District of Alabama
to answer charges that he violated the terms of his
supervised release in Case No. 3:13cr112-MEF by committing a
new offense. This charge was predicated upon his conviction
in Case No. 14-15196M (S.D. Cal.). See Doc. No.
11-6. On July 10, 2014, Jimenez-Gomez pled guilty in this
court to violating a term of his supervised release. Doc. No.
11-7; see also Case No. 3:13cr112-MEF, Doc. Nos. 48,
49 & 52. This court then sentenced Jimenez-Gomez to 10
months' imprisonment to be served consecutively to the
180-day term of imprisonment imposed by the California
federal district court in Case No. 14-15196M (S.D. Cal.).
Doc. No. 11-7; see also Case No. 3:13cr112-MEF, Doc.
Nos. 49 & 52. Jimenez-Gomez did not appeal the revocation
of his supervised release or the sentence this court imposed
for violating his supervised release. Jimenez-Gomez filed
this § 2255 motion on November 25, 2014, requesting that
this court revise the sentence imposed for his supervised
release violation to run concurrently with the sentence
imposed by the California federal court in Case No. 14-15196M
(S.D. Cal.). See Doc. No. 1 at 4.
if an available claim is not advanced on direct appeal, it is
deemed procedurally defaulted in a § 2255 proceeding.
See Mills v. United States, 36 F.3d 1052, 1055-56
(11th Cir. 1994); Greene v. United States, 880 F.2d
1299, 1305 (11th Cir. 1989). Because Jimenez-Gomez did not
appeal the revocation of his supervised release or the
sentence this court imposed for violating his supervised
release, he has procedurally defaulted any claim whereby he
might seek, through a § 2255 motion, to have this court
revise his sentence for his supervised release violation to
run concurrently with the sentence imposed in his California
procedural default bars consideration of the merits of a
claim presented in a § 2255 motion unless a petitioner
“can show cause excusing his failure to raise the
issues previously and actual prejudice resulting from the
errors.” Cross v. United States, 893 F.2d
1287, 1289 (11th Cir. 1990); see also Greene, 880
F.2d at 1305. If a petitioner fails to show cause and
prejudice, a procedural default will not preclude a federal
court from considering the petitioner's claim where he
can show that the court's failure to address his claim
would result in a “fundamental miscarriage of
justice.” Murray v. Carrier, 477 U.S. 478, 496
has not demonstrated cause why he did not raise his claim in
an appeal, nor has he demonstrated that he was prejudiced.
Likewise, he does not show that the court's failure to
address his claim would result in a fundamental miscarriage
of justice. Therefore, his claim is procedurally defaulted
and is not subject to review.
event, this court's imposition of a consecutive sentence
for Jimenez-Gomez's supervised release violation was in
accord with the governing statutes and applicable Policy
Statement of the Sentencing Guidelines. Title 18 U.S.C.
§ 3584, which governs the imposition of multiple
sentences of imprisonment, provides that “[m]ultiple
terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to
run concurrently.” 18 U.S.C. §3584(a). A district
court has discretion to impose a sentence upon revocation of
supervised release consecutively to other sentences being
served by the defendant. See United States v.
Quinones, 136 F.3d 1293, 1294-95 (11th Cir. 1998)
(holding that 18 U.S.C. § 3584(a) applies to revocation
sentences). In order to decide whether to impose consecutive
or concurrent sentences, the court must consider the factors
in 18 U.S.C. § 3553(a). See United States v.
Monrroy, 518 Fed.App'x 723, 725 (11th Cir. 2013)
(citing 18 U.S.C. § 3584(b)).
Sentencing Guidelines recommend consecutive sentences when
dealing with revocation of supervised release. Section
7B1.3(f) of the Guidelines reads:
Any term of imprisonment imposed upon the revocation of
probation or supervised release shall be ordered to be served
consecutively to any sentence of imprisonment that the
defendant is serving, whether or not the sentence of
imprisonment being served resulted from the conduct that is