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Figueroa v. United States

United States District Court, S.D. Alabama, Southern Division

May 6, 2019

CESAR POLANCO FIGUEROA, # 776146FH4, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CIVIL ACTION No. 17-00184-CG-B

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Petitioner Cesar Polanco Figueroa's “Motion to Correct His Sentence Under 18 USC 2255” (Doc. 160), and the Government's motion to dismiss (Doc. 162). This action was referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration.[1] Having carefully reviewed the record, the undersigned finds that no evidentiary hearing is necessary to resolve this matter.[2] Upon consideration, the undersigned recommends that Figueroa's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 be DENIED, that this action be DISMISSED, and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner, Cesar Polanco Figueroa. The undersigned further recommends that in the event Figueroa files a certificate of appealability and seeks to appeal in forma pauperis, said requests should be DENIED.

         I. PROCEDURAL BACKGROUND

         Figueroa, a citizen of Mexico, was indicted on August 27, 2015 and charged with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (count one); possession with the intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (counts two, four, five, and six); and possession with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) (count three). (Docs. 1, 98).

         On December 10, 2015, Figueroa's counsel advised the Court of Figueroa's desire to enter into a counseled plea agreement. (Doc. 58). In the plea agreement, Figueroa agreed to plead guilty to count one (conspiracy to distribute methamphetamine) of the indictment. (Doc. 65 at 1). As part of the plea agreement, Figueroa waived his “right to file any direct appeal or any collateral attack, including a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.” (Id. at 11). However, Figueroa reserved his right to challenge, in a direct appeal, any sentence imposed in excess of the statutory maximum and any sentence which constituted an upward departure or variance from the advisory guideline range. (Id. at 12). Figueroa also reserved the right to claim ineffective assistance of counsel in either a direct appeal or in a § 2255 motion. (Id.). In return, the Government agreed, inter alia, that it would not bring any additional charges against Figueroa related to the facts underlying the indictment, that it would move to dismiss the remaining counts against Figueroa, and that it would recommend to the Court that Figueroa be sentenced at the low end of the advisory guideline range. (Id. at 6).

         On December 16, 2015, Figueroa entered a plea of guilty to count one of the indictment. (Doc. 66). The Court accepted Figueroa's guilty plea. (Id.). Figueroa's sentencing hearing was held on March 23, 2016. (Doc. 101). Figueroa was sentenced to 135 months' imprisonment, a supervised release term of four years, and, immediately after incarceration, delivery to a duly-authorized Immigration official for deportation consideration. (Doc. 103). On April 7, 2016, the Court entered a judgment consistent with the pronounced sentence. (Id.). Figueroa did not directly appeal his conviction or sentence.

         On March 20, 2017, [3] Figueroa filed the instant “Motion to Correct His Sentence Under 18 USC 2255”. (Doc. 160). The Government filed a motion to dismiss Figueroa's § 2255 motion on May 5, 2017, in which it made the sole argument that Figueroa's sentencing-related claims are not cognizable under § 2255 because they do not constitute constitutional error or rise to the level of a miscarriage of justice. (Doc. 162). Figueroa filed a timely reply to the Government's motion. (Doc. 163). Accordingly, this matter is now ripe for review.

         II. HABEAS STANDARD

         The limited scope of habeas relief is well-established, as this Court has recognized:

Collateral relief is an extraordinary remedy which “may not do service for a[] [direct] appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (“Courts have long and consistently affirmed that a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.”). A defendant who has waived or exhausted his right to appeal is presumed to stand “fairly and finally convicted.” Frady, 456 U.S. at 164. Unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained extremely limited. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Consequently, “[i]f issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack. . . . A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns.” Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).

United States v. Evans, 2008 U.S. Dist. LEXIS 59836, at *8-9, 2008 WL 3200694, at *3 (S.D. Ala. Aug. 6, 2008) (quotation marks in original).

         III. DISCUSSION

         Figueroa argues that he should receive a twelve-month downward departure in his sentence based on his status as a deportable alien. (Doc. 160 at 2). Specifically, Figueroa contends that his status prevents him from serving his sentence in a minimum-security facility and spending the final portion of his sentence in home confinement or a transitional facility, as provided for in 18 U.S.C. § 3624(c), thereby causing a “fortuitous increase in the severity of his sentence” and denying him “proper re-entry back into the community.” (Doc. 160 at 1). Figueroa also asserts that his deportable alien status will cause him to continue to be held in custody after serving his present sentence while his deportation proceeding is completed, in violation of 8 U.S.C. § 1228(a), and that he should therefore be granted an additional downward departure of two to six months. (Id. at 6-7). Figueroa admits that he does not know whether Judge Granade considered granting a downward departure because of his alienage at sentencing, and he acknowledges that if such a departure was considered and declined, he “get[s] nothing.” (Id. at 10). However, according to Figueroa, if Judge Granade “overlooked that departure in [her] consideration of a just sentence[, ]” the Court should now correct his sentence to include a downward departure based on his deportable alien status. (Id. at 11). Figueroa also appears to raise a claim that his ineligibility for minimum security confinement, placement in a community correctional facility, or home confinement based on his status as a deportable alien amounts to an equal protection violation. (Id. at 4-6). In addition, Figueroa states: “I believe I did not get the 3 point downward departure for acceptance of responsibility and I ask that it be given to me now if in fact I did not receive it.” (Id. at 10).

         A. Figueroa's status as a deportable alien does not warrant a ...


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