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Guevara-Zelaya v. Wilson

United States District Court, Fourth Circuit

January 9, 2014

Freddy Guevara-Zelaya, Petitioner,
v.
Eric D. Wilson, Respondent.

MEMORANDUM OPINION AND ORDER

LIAM O'GRADY, District Judge.

Freddy Guevara-Zelaya, a federal inmate housed in the Eastern District of Virginia and proceeding. pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking resentencing with a one-level downward departure pursuant to the Fast Track Program for his conviction of illegal re-entry in District Court for the District of New Jersey. Petitioner has neither paid the statutory Filing fee for this action nor applied to proceed in forma pauperis. For the reasons that follow, this petition must be dismissed without prejudice.

I.

The facts underlying petitioner's present situation arc as follow:

Guevara is a citizen of Honduras and first came to the United States in 1994. From 1996 to 2009 Guevara was arrested in the United States twenty times for receiving stolen property, hindering apprehension, resisting arrest, trespassing, obstruction of justice, bail jumping, domestic violence, child molestation, assault and drug related offenses. As a result of these charges he acquired a criminal history category of VI.

On March 12, 2004, Guevara was convicted in the New Jersey Superior Court for possession of Cocaine with the intent to dispense or distribute within 1, 000 feet of a school and sentenced him to four years imprisonment. The offense was an aggravated felony. In 2006 he was deported to Honduras.

At some point after being deported in 2006, Guevara reentered the United States. In October 2009, Guevara was arrested for a traffic violation in Jersey City, New Jersey. He was later charged on a federal indictment by the United States Government for the crime of illegal re-entry because he had not obtained the consent of [the] U.S. Attorney to reenter the United States, in violation of 18 U.S.C. 1326(a) and (b)(2).

In November 2009, Assistant Federal Public Defender Kevin Carlucci was appointed to represent Guevara on the charge of illegal re-entry.

Guevara v. United States, R. No. 12-3213 (JAP) (D.N.J. July 24, 2013), slip op. at 1-2. Petitioner accepted a fact-stipulated plea agreement to the charge and was sentenced in May, 2011 to serve 77 months in prison. Id. at 3. Mr. Carlucci Filed an appeal on petitioner's behalf. arguing that the court did not properly weigh either petitioner's admittance of guilt or the reasons why he had returned to the United States, and that petitioner's sentence was disproportionately harsh For the crime committed. Id . On January 13, 2012, the Third Circuit Court of Appeals affirmed the sentence. United States v. Guevara-Zelaya, R. No. 11-2462 (3d Cir. Jan, 13, 2012).

On May 30, 2012, Guevara Filed a motion to vacate pursuant to 28 U.S.C. § 2255 in the District Court for the District of New Jersey, claiming that he received ineffective assistance of counsel and his plea was involuntary because Mr. Carlucci had told him that his acceptance of the plea would result in a sentence of time served and deportation. In an unpublished opinion dated July 24, 2013, the motion was dismissed by United States District Judge Joel A. Pisano for lack of evidence of ineffective assistance of counsel and petitioner's knowing entry into the plea agreement. Guevara v. United States, supra. The Court declined to issue a certificate of appealability. Id.

Guevara filed the instant petition for a writ of habeas corpus pursuant to § 2241 on December 2, 2013, [1] seeking a one-level downward departure in his sentence based on the Fast Track Program.

II

A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack on the imposition of a federal conviction and sentence. Rice v. Rivera , 617 F.3d 802, 807 (4th Cir. 2010) ("[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their conviction and sentences through § 2255, "). The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of the district courts to hear second or successive applications for § 2255 federal habeas corpus relief' by establishing a "gatekeeping mechanism, " Felker v. Turpin , 518 U.S. 651, 657 (1996). Now, "[b]efore a second or successive application permitted by this section is riled in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).

A federal inmate may not proceed under 28 U.S.C. § 2241 unless he demonstrates that the remedy afforded by § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 (e).[2] For example, "attacks on the execution of a sentence are properly raised in a § 2241 petition." In re Vial , 115 F.3d 1192, 1194 n.5. Nonetheless, the Fourth Circuit has emphasized that "the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision or because an individual is procedurally barred from filing a § 2255 motion." Id . (internal citations omitted). Thus, a ...


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