United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Humberto Fierro-Rascon is currently in custody at the Gilmer
Federal Correctional Institution, located in West Virginia.
Following a jury trial in January 2015, petitioner was
convicted of conspiracy to possess with intent to distribute
more than 50 kilograms of marijuana in violation of 21 U.S.C.
§§ 841(b)(1)(C), 846. I sentenced petitioner to
eight years of prison and three years of supervisory release.
Judgment and Commitment, United States v.
Fierro-Rascon, No. 14-cr-13, (W.D. Wis. Mar. 17, 2015),
ECF No. 127. Petitioner is now proceeding pro se and asks the
court to vacate his conviction and sentence under 28 U.S.C.
petitioner is proceeding pro se, I must review his petition
under “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 521 (1972). After conducting a preliminary review
of the petition under Rule 4 of the Rules Governing Section
2255 Cases in the United States District Courts, I conclude
that two of petitioner’s claims are barred and the
other two are procedurally defaulted. However, I will give
petitioner an opportunity to respond to this order with
regard to the defaulted claims and attempt to overcome his
incarcerated in federal prison, petitioner organized a scheme
to traffic marijuana into the United States from Mexico using
an altered van. Officials uncovered the plan by listening to
petitioner’s recorded prison phone calls. When the van
attempted to enter the United States, border officials
stopped it and discovered the marijuana. The government
charged petitioner and the other people involved, including
petitioner’s co-conspirator, Christopher Johnson, who
pleaded guilty and testified against petitioner at trial.
January 15, 2015, petitioner was convicted by a jury of
conspiracy to possess with intent to distribute more than 50
kilograms of marijuana in violation of 21 U.S.C. §§
841(b)(1)(C), 846. I sentenced him to eight years of prison
and three years of supervisory release, which included the
addition of four offense levels for his leadership role in
the scheme. U.S.S.G. § 3B1.1(a). Petitioner appealed to
the Seventh Circuit, which allowed his attorney to withdraw.
United States v. Fierro-Rascon, 627 F. App’x
550, 551-53 (7th Cir. 2015). On appeal, petitioner challenged
the four-level sentencing adjustment and the effectiveness of
his counsel, among other arguments. But the Seventh Circuit
rejected all of his arguments and dismissed his appeal.
Id. at 553.
“relief under § 2255 is an extraordinary remedy
because it asks the district court to essentially reopen the
criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). To prevail,
petitioner must show that his “sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a).
alleges four grounds for relief: a Fourth Amendment violation
in the search and seizure of his personal phone book;
improper phone interceptions in violation of 18 U.S.C.
§§ 2510, 2515, 2516, 2518; an improper sentencing
adjustment under U.S.S.G. § 3B1.1(b); and ineffective
assistance of counsel.
raised the sentencing adjustment and the ineffective
assistance of counsel grounds on direct appeal. Unless his
circumstances have changed since then, he may not revisit
those grounds here. Vinyard v. United States, 804
F.3d 1218, 1226-27 (7th Cir. 2015) (“Issues raised on
direct appeal may not be reconsidered on a § 2255 motion
absent changed circumstances.” (internal quotation
marks and citations omitted)). Petitioner does not allege any
changed circumstances, and so I will not consider his
challenges to the sentencing adjustment or the effectiveness
of his counsel’s assistance.
did not raise his Fourth Amendment or improper phone
interception grounds on direct appeal. There is no apparent
reason why he could not have done so. Petitioner has
therefore procedurally defaulted those claims. McCoy v.
United States, 815 F.3d 292, 295 (7th Cir. 2016)
(“A claim cannot be raised for the first time in a
§ 2255 motion if it could have been raised at trial or
on direct appeal.”). The only way for petitioner to
raise those claims now is by overcoming the default. To
overcome default, he must show good cause for failing to
raise the defaulted claims and actual prejudice from
defaulting, or demonstrate that he is actually innocent.
Torzala v. United States, 545 F.3d 517, 522 (7th
give petitioner an opportunity to overcome his default by
responding to this order and explaining: (1) why he failed to
raise his Fourth Amendment and phone interception claims on
direct appeal, and what actual prejudice he will suffer as a
result of defaulting those claims; or (2) whether and how a
failure to review his claims will constitute a fundamental
miscarriage of justice because he is actually innocent of the
charges. If petitioner fails to timely and adequately
respond, then I will dismiss his petition.
ORDERED that petitioner Humberto Fierro-Rascon may have until
June 28, 2016, to file a response explaining why this court
should review his procedurally defaulted claims. If