United States District Court, D. Massachusetts
For USA, Plaintiff: Mark J. Grady, United States Attorney's Office, Worcester, MA.
MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
F. Dennis Saylor IV, United States District Judge.
This is a motion to vacate, set aside, or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. Petitioner Henry Gutierrez seeks to vacate his sentence on four grounds. Specifically, he alleges that he received ineffective assistance of counsel in violation of his Sixth Amendment rights; that the Court improperly imposed a mandatory guideline sentence; that his prior convictions were not proved through a " fair trial" ; and that it is in both his and the Court's " best interests" to vacate his sentence. For the reasons set forth below, the motion will be denied.
On April 30, 2010, Henry Gutierrez pleaded guilty to (1) one count of conspiracy to distribute, and to possess with intent to distribute, cocaine base and (2) two counts of distribution of cocaine base. On November 29, 2010, before the sentencing, this Court denied motions by Gutierrez to withdraw his guilty plea and to appoint new counsel. On December 1, 2010, his attorney filed a motion to withdraw as counsel. After a hearing on December 3, 2010, Gutierrez and his attorney agreed that the motion to withdraw should be withdrawn. On December 17, 2010, the Court sentenced Gutierrez to a term of incarceration of 188 months and 10 years of supervised release.
With the assistance of new counsel, Gutierrez filed an appeal of his sentence, raising four claims: (1) that the Court imposed a sentence to ensure that he received medical treatment in violation of the holding in Tapia v. United States, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011); (2) that the Court abused its discretion by imposing a substantially unreasonable prison sentence despite his mental illness; (3) that his criminal history points were miscalculated; and (4) that the Court erred by refusing to grant a variance based on his role in the charged crime, his diminished mental capacity, and the disparity between his sentence and his co-defendants' sentences. On April 9, 2012, the First Circuit affirmed the sentence. Gutierrez did not file a petition for a writ of certiorari to the United States Supreme Court.
On July 1, 2013, Gutierrez, acting pro se, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The petition alleges four grounds for relief. First, he alleges a " [v]iolation of Constitutional law by means of not providing [him] with[e]ffective [c]ounsel." (Def. Mot. to Vacate at 5). Second, he contends that this Court improperly imposed a mandatory sentence in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Third, he alleges that he was improperly denied a fair trial to prove his prior convictions. Fourth, he argues that it is in both his best interest and the Court's best interest to vacate his sentence.
Congress enacted 28 U.S.C. § 2255 " as a substitute for the traditional habeas remedy with respect to federal prisoners." Ramos-Martinez v. United States, 638 F.3d 315, 320 (1st Cir. 2011) (quoting Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008)). A court may grant a petitioner
relief only on the grounds that the sentence " (1) was imposed in violation of the Constitution, (2) was imposed by a court that lacked jurisdiction, (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). The petitioner bears the ...