Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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2:10 CR 00109
children, including 3 little ones, ages 12, 6 and 4, and a wonderful supportive
wife. He has always worked hard, often working more than one job to make
ends meet. He was an excellent police officer who received many award and
commendations. He is a loving son and brother to his parents and siblings.
Despite limited ability, he managed to educate himself and obtain a
bachelors degree. He has never been in trouble in his life. This will be his
first brush with the law. The many letters submitted to the Court, attest to
his character and penchant for good. Rather than go to trial and defend
himself, Mr. Guerrero chose to admit his guilt. He further chose to cooperate
with the government in their prosecution of his co-defendants as well as
others not yet charged with crimes. He did this because he felt it was the
right thing to do, despite placing himself in an extremely dangerous position,
considering he is an incarcerated police officer. He is hopeful that he will one
day see his family again. His children will be grown when he comes home.
Nonetheless, he is hopeful that he will one day be able to hold them again as a
free man.
(2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense:
(B) to afford adequate deterrence to criminal conduct:
(C) to protect the public from further crimes of the defendant:
Respectfully Submitted,
/s/ Kevin Milner
______________________________
Kevin Milner
Kevin Milner
1000 East 80th Place
Suite 511 S
Merrillville, IN 46410
(219)406-0556
CERTIFICATE OF SERVICE
I, Kevin Milner, hereby certify that I serve a copy of the attached motion
upon all parties of record by electronically filing the same with the Clerk of the
Court for the Northern District of Indiana, Hammond Division, on January 10,
2013.
/s/ Kevin Milner
_______________________________
Kevin Milner
ALEX GUERRERO
Defendant
KEVIN E MILNER
Defendants Attorney
___________________________________
JUDGMENT IN A CRIMINAL CASE
THE DEFENDANT pleaded guilty to counts 1, 2, 14 and 15 of the Third Superseding Indictment
on 8/2/2012.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offenses:
Date Offense
Ended
Count
Number
November 2011
November 2011
November 2011
14
November 2011
15
The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is
imposed pursuant to the Sentencing Reform Act of 1984.
IT IS ORDERED that the defendant must notify the United States Attorney for this district within 30
days of any change of name, residence, or mailing address until all fines, restitution, costs and
special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the
defendant must notify the court and United States Attorney of any material change in economic
circumstances.
Page 2 of 7
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons
to be imprisoned for a total term of 228 months.
This term of imprisonment consists of 168 months for each of Counts 1, 2 and 14, to be
served concurrently; and 60 months for Count 15, to be served consecutively to all other Counts.
RETURN
I have executed this judgment as follows:
Defendant delivered
, with a certified copy of this judgment.
to
at
By:
DEPUTY UNITED STATES MARSHAL
Page 3 of 7
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of 5
years.
This period of supervision consists of 3 years for each of Counts 1, 14 and 15, and 5
years for Count 2, all to be served concurrently.
The defendant shall report in person to the probation office in the district to which the defendant
is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain
from any unlawful use of a controlled substance.
The defendant shall submit to one drug test within 15 days of release from imprisonment and
two (2) periodic drug tests thereafter, as determined by the Court.
The defendant shall not possess a firearm, ammunition, destructive device, or any other
dangerous weapon.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
If this judgment imposes a fine or restitution, it is a condition of supervised release that the
defendant pay in accordance with the Schedule of Payments sheet of this judgment.
Page 4 of 7
The defendant shall not leave the judicial district without the permission of the Court or
probation officer.
2.
The defendant shall report to the probation officer in the manner and as frequently as
directed by the Court or probation officer.
3.
The defendant shall answer truthfully all inquiries by the probation officer and follow the
instructions of the probation officer.
4.
The defendant shall support his dependents and meet other family responsibilities.
5.
The defendant shall work regularly at a lawful occupation unless excused by the
probation officer for schooling, training, or other acceptable reasons.
6.
The defendant shall notify the probation officer within ten (10) days of any change in
residence or employment.
7.
The defendant shall refrain from excessive use of alcohol and shall not purchase,
possess, use, distribute, or administer any narcotic or other controlled substance, or any
paraphernalia related to such substances, except as prescribed by a physician.
8.
The defendant shall not frequent places where controlled substances are illegally sold,
used, distributed, or administered.
9.
The defendant shall not associate with any persons engaged in criminal activity, and
shall not associate with any person convicted of a felony unless granted permission to
do so by the probation officer.
10.
The defendant shall permit a probation officer to visit him or her at any time at home or
elsewhere and shall permit confiscation of any contraband observed in plain view by the
probation officer.
11.
The defendant shall notify the probation officer within seventy-two (72) hours of being
arrested or questioned by a law enforcement officer.
12.
The defendant shall not enter into any agreement to act as an informer or a special
agent of a law enforcement agency without the permission of the Court.
13.
As directed by the probation officer, the defendant shall notify third parties of risks that
may be occasioned by the defendants criminal record or personal history or
characteristics, and shall permit the probation officer to make such notifications and to
confirm the defendants compliance with such notification requirement.
14.
The defendant shall pay the special assessment imposed or adhere to a court-ordered
installment schedule for the payment of the special assessment.
15.
The defendant shall notify the probation officer of any material change in the defendants
economic circumstances that might affect the defendants ability to pay any unpaid
amount of restitution, fines, or special assessments.
Page 5 of 7
Page 6 of 7
The defendant shall pay the following total criminal monetary penalties in accordance
with the schedule of payments set forth in this judgment.
Total Assessment
Total Fine
Total Restitution
$400.00
NONE
NONE
The defendant shall make the special assessment payment payable to Clerk, U.S.
District Court, 5400 Federal Plaza, Suite 2300, Hammond, IN 46320. The special assessment
payment shall be due immediately.
FINE
No fine imposed.
RESTITUTION
No restitution was ordered.
Page 7 of 7
Name:
Docket No.:
ALEX GUERRERO
2:10cr109-022
(Signed)
____________________________________
Defendant
__________________
Date
____________________________________
__________________
Date
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2:10 CR 109 RL
2:14 cv 11 RL
Comes now the United States of America, by David Capp, United States Attorney for the
Northern District of Indiana, through Assistant U.S. Attorney David J. Nozick, and responds to the
defendant Alex Guerreros Motion under 28 U.S.C. 2255 to Vacate, Set Aside or Correct
Sentence as follows:
I.
FACTUAL BACKGROUND
On November 16, 2011, the defendant was indicted in the Northern District of Indiana in
the Third Superseding indictment in the case of United States v, Vargas et al. [R. 230]. The
defendant, who was still working as a Chicago Police Officer at the time of his indictment, was
charged in Count One with Conspiracy to participate in Racketeering Activity. Count Two
charged the defendant in a narcotics conspiracy. Count Fourteen charged the defendant with
Interference with Commerce by Threats or Violence. Count Fifteen charged the defendant with
carrying and using firearms during and in relation to federal crimes of violence and drug
trafficking. On November 30, 2011, the defendant entered a plea of not guilty at his arraignment.
[R. 303]. On July 26, 2012, the defendants written plea agreement was filed with the court. [R.
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501]. The defendant pled guilty in open court on August 2, 2012. He was represented by
attorney Kevin Milner. [R. 516].
The defendant received a draft presentence report on December 6, 2012. [R. 648]. The
government informed the United States Probation office that it had no objection to the Presentence
Report (the PSR,) on December 9, 2012. [R. 684]. On December 26, 2012 the government
filed its Motion for Downward Departure. [R. 682]. On December 28, 2012, the defendant
indicated that he had no objections to the PSR. [R. 696]. The government and the defendant
received the final PSR on December 28, 2012. [R. 699]. On January 10, 2013, attorney Kevin
Milner filed his sentencing memorandum. [R. 734]. On January 11, 2013, the defendant was
sentenced by the Honorable Judge Lozano to a total term of incarceration of 228 months.
On January 10, 2014, the defendant filed a pro se Motion to Vacate under 28 U.S.C.
2255.
II.
ARGUMENT
The defendant first argues in his pro se motion that he was denied effective assistance of
counsel because after reviewing the case his attorney told him that he had committed no crime, and
his only connection to the case was through his Chicago Police Department partner, Antonio
Martinez, who was linked to the Latin Kings. The defendant states that at no point did his partner
alert him to any illegal activities. After reviewing the case initially, Kevin Milner led the
defendant to believe that he would be cleared of the charges.
The defendants second ground appears to state the exact opposite of the first ground. The
defendant states that he pled guilty because his attorney told him that there was overwhelming
evidence against him, including the firearm which he carried in his duties as a police man, and
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calls made to Mexico. The defendant states that these calls were made by his wife, and were to
her relatives.
The defendants fourth ground states that his constitutional rights were violated as the
media was biased against him because he was a Chicago Police Officer, his association with
Antonio Martinez made him look guilty, and the police union had him sign papers which turned
out to be dismissal papers. Furthermore, there were fellow officers who refused to come forward
to assist him in fear of losing their jobs.
The defendants first, second and fourth arguments fail, as they are directly contradicted by
the defendants plea agreement and plea hearing. The defendants signed written plea agreement
is the standard one used in this district, one that this honorable court has seen hundreds of times.
In his signed written plea agreement, and again under oath at the Rule 11 hearing, Guerrero
indicated that he had discussed his entire case with his attorney; that Ibelieve and feel that I
understand every accusation made against me in this case,@ [R. 501, & 2]; that AI have told my
lawyer the facts and surrounding circumstances as known to me concerning the matters mentioned
in the Third Superseding Indictment and believe and feel that my lawyer is fully informed as to all
such matters. My lawyer has counseled and advised with me as to the nature and elements of
every accusation against me and as to any possible defenses I might have. [R. 501, &3].
Guerrero also indicated in this signed plea agreement, in addition to so indicating under oath at the
plea hearing, that he was pleading guilty to conspiracy to participate in racketeering activity, in
violation of Title 18, United States Code, Section 1962(d), because he was in fact guilty as
charged. [R. 501, & 7(a)]. Similarly, he stated in his signed plea agreement and under oath at his
plea hearing that he was pleading guilty to the narcotics conspiracy charged in Count Two, in
violation of Title 18, United States Code, Section 846, because he was in fact guilty as charged.
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[R. 501, & 7(c)]. He also stated in his plea agreement and at his plea hearing that he is pleading
guilty to the Hobbs Act Robbery count charged in count fourteen, in violation of Title 18, United
States Code Section 1951 because he was guilty as charged.
his plea agreement and at his plea hearing that he is pleading guilty to using and carrying a gun in
furtherance of the drug trafficking and Hobbs act robbery, in violation of Title 18, United States
Code, Section 924(c)(1)(A) because he was guilty as charged. [R. 501, & 7(g)]. Finally, the
defendant stated in his plea agreement and again at his sentencing hearing that he believed and felt
that his attorney has done all that anyone could do to counsel and assist me, and that I now
understand the proceedings in this case against me. [R. 501, & 15].
It should also be noted that while the defendant appears to assert in his first Ground that at
no time did Antonio Martinez alert me to any illegal activities, this is controverted by the
defendants plea colloquy. During the course of the plea hearing, while laying the factual basis,
the defendant stated that my police partner and I committed robberies under the direction of Sisto
Bernal. [Plea Hearing Transcript, 46]. Guerrero admitted to being involved with Sisto Bernal,
a member of the Latin Kings, who was giving Guerrero and Martinez directions. [Plea Hearing
Transcript, 47]. Guerrero then elaborated that he and Martinez committed robberies in Northwest
Indiana at Bernals direction, stealing drugs, money and guns. Guerrero and Martinez would then
turn these items over to Bernal, and would get paid. [Plea Hearing Transcript, 50]. The
defendant further admitted to the court that he was responsible for more than 5 kilos of cocaine and
1,000 kilos of marijuana. [Plea Hearing Transcript, 52]. The defendant also admitted to doing a
robbery of James Walsh, in Hammond Indiana. During the course of this robbery the defendant
utilized his police uniform and was wearing his firearm. [Plea Hearing Transcript, 54]. The
defendant then turned over the firearms, and/or marijuana and/or cocaine and/or U.S. currency to
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Sisto Bernal. [Plea Hearing Transcript, 55]. Regarding the 924(c) violation, the defendant
admitted that he had his firearm with him, and he used that firearm to help commit the offenses.
[Plea Hearing Transcript, 56].
The defendants first, second and fourth Grounds should be denied because they are plainly
and completely contradicted by the defendants own words, under oath, during the plea hearing.
In the guilty plea context, Athe record of a Rule 11 proceeding is entitled to a presumption of verity
and the answers contained therein are binding.@ United States v. Martinez, 169 F.3d 1049, 1054
(7th Cir. 1999); United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992) (explaining that
voluntary responses made by a defendant when entering a guilty plea are binding); Lawuary v.
United States, 199 F.Supp.2d 866, 876-77 (C.D. Ill. 2002) (holding same); United States v.
Mosley, 1994 WL 503016, at *2-*3 (7th Cir. Sept. 14, 1994) (ASelf-serving statements offered after
the plea hearing generally fall in the face of contradictory voluntary statements made by the
defendant during a plea hearingB B the latter are presumed true.@); United States v. Malave, 1994
WL 128658, at *3 (7th Cir. Apr. 14, 1994); United States v. Knorr, 942 F.2d 1217, 1220 (7th Cir.
1991) (A[R]ational conduct requires that voluntary responses made by a defendant when entering a
guilty plea be binding.@); United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987) (A[V]oluntary
responses made by a defendant under oath before an examining judge [are] binding@); see also
United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002); Barker v. United States, 7 F.3d 629, 634
n.5 (7th Cir. 1993) (both explaining that a reviewing court must be able to rely on the answers given
by a defendant at a change of plea hearing, and that the record made at such hearing carries a
Apresumption of verity@); United States v. Gwiadzinski, 141 F.3d 784, 788 (7th Cir. 1998) (AWe will
not force an attitude of skepticism on [Rule 11 hearings] which would eliminate the presumption
of truthfulness expected from responses given under oath.@). This ARule 11 questioning has
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special importance to collateral proceedings,@ for Athe representations of the defendant at a plea
hearing as well as any findings made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceeding.@ Key v. United States, 806 F.2d 133, 138 (7th Cir.
1987).
In United States v. Stewart, 198 F.3d 984 (7th Cir. 1999), the Seventh Circuit affirmed the
district court=s denial of the defendant=s request to withdraw his guilty plea, and in so doing,
emphasized the following regarding the presumption of verity accorded to a defendant=s
statements made under oath at his guilty plea hearing:
Because many defendants seem to be under the
misapprehension that a guilty plea is just provisional, and an oath to
tell the truth means nothing, let us be clear. A district judge may
permit a defendant to withdraw the plea if the judge finds
convincing the defendant=s reasons for lying under oath, but because
the district judge possesses considerable discretion in this regard,
United States v. Abdul, 75 F.3d 327, 329 (7th Cir. 1996), a defendant
has no chance of success on appeal when the judge elects to treat
freely given sworn statements as conclusive. Entry of a plea is not
some empty ceremony, and statements made to a federal judge in
open court are not trifles that defendants may elect to disregard. A
defendant has no legal entitlement to benefit by contradicting
himself under oath. Thus when the judge credits the defendant=s
statements in open court, the game is over. See Anderson v.
Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d
518 (1985). There will be no further evidentiary hearing, and an
appeal is pointless (indeed, frivolous).
Stewart, 198 F.3d at 987.
The defendants third ground is that the conviction was obtained by the governments
failure to disclose exculpatory material to the defendant. The defendant states that he was told by
his attorney that the prosecution delayed giving him exculpatory material. The defendant then
says Please refer to my PCR. Please see attachment. The attachment to the defendants
motion is a copy of his sentencing memorandum in this case.
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This argument should be denied in that it is overly vague and states no prejudice suffered
by the defendant. There is nothing in the defendants attached sentencing memorandum that
refers to Brady materials that were either late or were never provided. There is nothing in the
defendants presentence report that pertains to Brady materials. At no point does the defendant
cite what exculpatory materials he believes existed. The undersigned Assistant U.S. Attorney
represents as an officer of the court that there were no Brady violations in this case, and the
government is not sure what the defendant is referring to here. This ground should be summarily
denied as insufficient.
III.
CONCLUSION
WHEREFORE, for the reasons stated above, the motion should be denied without a
hearing on the matter.
Respectfully submitted,
DAVID CAPP
UNITED STATES ATTORNEY
s/ David J. Nozick_________
David J. Nozick
Assistant United States Attorney
Certificate of Service
I hereby certify that on March 31, 2014 I electronically filed the foregoing with the
Clerk of the Court by using the appellate CM/ECF system. I certify that I have mailed by
United States Postal Service the document to the following non CM/ECF participants:
Alex Guerrero
No. 11905-027
FCI Allenwood Low
P.O. Box 1000
White Deer, Pennsylvania 17887
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NO. 2:10-CR-109
(2:14-CV-11)
For the reasons set forth below, the section 2255 motion
is DENIED.
BACKGROUND
On November 16, 2011, a Third Superseding Indictment was filed
Count One
Count Two
(DE
(Id.,
(Id., 8).
Specifically,
level.
(Id.,
9(a)).
They
also
agreed
that
the
The case had a total of 23 defendants, but two plead guilty prior to
the filing of the Third Superseding Indictment.
(Id., 8(b)).
(Id., 15-16).
read it previously, understood it, agreed with it, and was asking
the Court to approve it.
questions.
(Id. at 9-10).
(Id. at 9-65).
Court
informed
Guerrero
of
the
maximum
and
minimum
penalties for each of the four counts he was pleading guilty to.
(Id. at 14-21). Guerrero indicated that he understood the possible
sentences he could receive.
(Id.).
(Id. at 30-31).
Q:
A:
Q:
A:
Q:
A:
(Id. at 30-31).
The Court asked Guerrero to explain why he was guilty of each
Count.
(Id. at 46).
(Id. at 46-
(Id. at 48).
(Id. at 50).
(Id.).
(Id.).
He
(Id. at 54).
(Id.).
He
further admitted that he had a weapon and that he used the uniform
and weapon in order to accomplish the robbery.
(Id. at 54).
He
indicated that the stolen property was turned over to Sisto Bernal.
(Id. at 55).
The Court also asked counsel for the Government to summarize
the facts that they were prepared to prove at trial with regard to
each count that Guerrero intended to plead guilty.
(Id. at 57).
police officers.
They took two Glock brand
pistols that the resident legally owned and
turned those over to Sisto Bernal.
One of
those guns turned up during a traffic stop in
Nebraska a time later.
Then, in December 2006, there was another
Hobbs Act robbery they conducted. That was at
the residence of James Walsh, also known as
Jim Bob.
He was a leader of the Latin
Dragons. He was one of the individuals killed
at the Sopranos Restaurant in Griffith.
Thats also part of the indictment.
There,
again, they are driving a tactical car. They
have badges.
They have their vests.
They
have their department-issued guns. They went
inside. They tied people up, and they stole
firearms and some currency and some narcotics
and turned it over to Sisto Bernal.
During all these events, he and his
partner are armed. During all these events,
they abused a position of power. During some
of these events, people were physically
restrained and tied up, and they wore their
tactical ballistic vests during all these.
Turning
to
Count
Two,
the
drug
conspiracy, it is basically the same set of
facts.
They
were
stealing
drugs,
predominately cocaine, and turning it over to
Sisto Bernal, the leader - - or one of the
leaders of the Latin Kings. Through Pinkerton
liability, they are liable for over 150 kilos
or more of cocaine and a thousand kilos or
more of marijuana, and these amounts were
foreseeable to this defendant.
Turning to Count 14 and 15, its the same
set of facts that I mentioned earlier,
discussing
the
robbery,
the
Hobbs
Act
robberies in December of 2006. There was a
residence here in Hammond of James Walsh.
Its the same facts that I discussed above.
Again, theyre in uniform with guns, badges,
and they did one of these robberies at this
residence and took the things that I mentioned
before.
In Count 15 well, strike that.
Moving backwards, as far as interstate
commerce, they took narcotics that would have
traveled in interstate commerce.
They took
drugs which would have traveled and affected
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interstate commerce.
Further than that, as I mentioned, Mr.
Walsh was a leader of the Latin Dragons. That
is an organization that operates both in
Indiana and in Illinois, and they are an
organization
that
affected
interstate
commerce.
As far as the 924(c) count in Count 15,
thats the same set of facts.
He had a
firearm, his department-issued firearm while
doing that robbery.
Thats all.
(Id. at 57-63).
After a few follow up questions regarding the interstate
commerce requirement, the following exchange occurred between the
Court and Mr. Guerrero:
Q:
A:
Q:
A:
Q:
A:
(Id. at 64).
Following this exchange, counsel for both the Defendant and
the Government stated that they were satisfied that the Defendants
plea was made knowingly and voluntarily and that it was supported
by an independent basis in fact containing each of the essential
elements of the offenses.
(Id. at 64).
DE #700).
(Id.).
This is
the length of imprisonment that the parties agreed was a just and
appropriate sentence in their plea agreement.
Judgment was entered on January 15, 2013. (DE #743). Guerrero did
not file a notice of appeal.
Guerrero filed the instant motion under section 2255 on
January 10, 2014, setting forth several arguments: (1) Denial of
effective Assistance of counsel; (2)Conviction obtained by plea
of guilty which was unlawfully induced or not made voluntarily or
with understanding of the nature of the charge and the consequences
of the plea; (3) Conviction obtained by the unconstitutional
failure of the prosecution to disclose to the defendant evidence
favorable to the defendant; (4) My constitutional and civil
rights were violated.
(DE #1108).
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Therefore, this
DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for "extraordinary situations."
812, 816 (7th Cir. 1996).
section
2255
Id.
motion
is
neither
substitute
for
nor
975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
12
As a
on
direct
appeal,
section
2255
petitioner
may
principle
that,
when
interpreting
pro
se
In other words:
13
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
On the other hand, "a district court should not 'assume the role of
advocate for the pro se litigant' and may 'not rewrite a petition
to include claims that were never presented.'"
Id.
Here, while
Guerrero did have counsel at the time his reply was filed, the
petition was filed pro se; therefore, the Court has assessed
Guerreros claims with these guidelines in mind.
claim, the Defendant must first show the specific acts or omissions
of
his
attorney
"fell
below
an
objective
standard
of
(7th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 690); see
also Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003);
Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir. 2001).
The
showing
by
"a
reasonable
probability
that,
but
for
Regarding the
at 690; Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003)
(citation omitted).
Strickland, 466
Seventh
Circuit
has
held
Id. at 697.
that
[o]nly
those
habeas
petitioners who can prove under Strickland that they have been
denied a fair trial by the gross incompetence of their attorneys
will be granted the writ.
(7th Cir. 2005).
He states that:
15
statements,
we
credit
them
over
[defendants]
later
claims.
United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999).
The Court will not allow Guerrero to rewrite history in order to
undercut the provisions to which he willingly agreed.
Id. (citing
See
also United States v. Chavers, 515 F.3d 722, 725 (7th Cir. 2008)
(in the context of a defendants attempt to withdraw his guilty
plea, subsequent bare protestations of innocence that contradict
his sworn testimony made during the plea hearing are insufficient
to do so); United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)
(representations made by the defendant during a change of plea
hearing are entitled to a presumption of verity.).2
As such,
16
with
understanding
of
the
nature
of
the
charge
and
the
He explains as
follows:
I plead guilty because my attorney told me
that there was over whelming [sic] evidence
against me including, a gun, which was the
firearm that I carry as a part of my duty as a
Police Officer not to use as a part of any
illegal
activities,
alleged
phone
conversations that led to Mexico that the
government claimed were illegal activities.
These phone calls were my wifes relatives
whom she call [sic] periodically to check [on]
their welfare. I had no knowledge of these
phone calls.
(Id.).
Again, Guerreros claim that his police issued firearm was not
used in any illegal activity is directly contrary to his testimony
at his change of plea hearing.
this Court to credit his current version of the facts over his
prior sworn testimony.
His
current
statements
to
the
contrary
are
The
was
allegedly
produced
late,
or
how
that
evidence
#1108
at
5).
First
off,
Guerreros
alleged
wrongful
that the public viewed him as guilty before trial is true, that too
provides no basis for relief under section 2255.
Guerrero is not
arguing that any jury was unfairly biased against him - just that
public opinion was biased against him.
proceeded to a jury trial.
include
any
facts
which
support
his
claim
that
his
obtained counsel after his section 2255 motion was filed and that
the reply brief was filed by counsel.
According to counsel:
(Id. at 3).
What Guerreros
section 2255 motion actually says is not that his counsel told him
19
Id. at 478.
20
Id.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must issue or deny a certificate of
appealability
applicant.
when
it
enters
final
order
adverse
to
the
28 U.S.C. 2253(c)(2).
To make such a
were
adequate
to
deserve
encouragement
to
proceed
further.
determination
that
reasonable
21
would
find
this
decision
debatable
or
incorrect
or
that
the
issues
deserve
Therefore, a certificate of
CONCLUSION
For the aforementioned reasons, Defendants section 2255
motion is DENIED.
PREJUDICE.
certificate of appealability.
a copy of this order to Alex Guerrero, #11905-027, Allenwood FCI 1000- Low, Federal Correctional Institution, Inmate Mail/Parcels,
P.O. Box 1000, White Deer, PA 17887, or to such other more current
address that may be on file for the Petitioner.
22