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Salgado-Lopez v. United States

United States District Court, W.D. Wisconsin

October 1, 2019

CARMELO SALDAGO-LOPEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          William M. Conley District Judge.

         Petitioner Carmelo Saldago-Lopez, a federal prisoner incarcerated at the Federal Correctional Institution in Greenville, Illinois, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Having conducted a preliminary review of his motion under Rule 4 of the Rules Governing Section 2255 Cases, the court concludes that it is plainly apparent petitioner is not entitled to relief for the reasons that follow. Accordingly, his motion will be dismissed.

         BACKGROUND

         In December of 2016, Saldago-Lopez was charged in a one-count indictment with knowingly and unlawfully attempting to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846. On March 6, 2017, the government submitted an information that again charged him with knowingly and unlawfully attempting to possess with intent to distribute a mixture or substance containing a detectable amount of methamphetamine in violation of § 846, but reduced the quantity from 500 grams to 50 grams. (Dkt. #16.) Both the indictment and the information also listed § 846 and 21 U.S.C. § 841(a)(1) as the charging statutes.

         On February 24, 2017, Saldago-Lopez and the government entered into a plea agreement. Consistent with that agreement, the court held a plea hearing on March 10, 2017, during which Saldago-Lopez consented to prosecution by information (dkt. ##16, 19), and entered a valid plea of guilty. On May 19, 2017, the court sentenced Saldago-Lopez to a below-guidelines sentence of 132 months of confinement followed by four years of supervised release. Saldago-Lopez did not appeal his conviction or sentence.

         OPINION

         In his motion, Saldago-Lopez lists four grounds for relief: (1) his counsel was ineffective in failing to challenge the conspiracy charge; (2) he was not charged or indicted under the penalty provision of paragraph (B) under either § 841 or § 846; (3) his guilty plea was not properly taken and the product of ineffective assistance of counsel; and (4) the indictment did not charge an offense against the United States. Pursuant to Rule 4, the court is dismissing this petition since “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See also Dellenbach v. Hanks, 76 F.3d 820, 822 (7th Cir. 1996) (petition must cross “some threshold of plausibility” before requiring response). The court will first address his challenges to the indictment itself (grounds 2 and 4), and then turn to his claims of ineffective assistance of counsel (grounds 1 and 3).

         I. Challenges to Information

         Unfortunately for petitioner, he cannot raise his challenges to the information in a motion for postconviction relief because he failed to do so on direct appeal. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (a § 2255 motion is not a substitute for a direct appeal).[1] Under this doctrine of procedural default, “[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.” McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). While a petitioner can overcome this doctrine in his § 2255 motion, he must show (1) both cause and prejudice for the default, or (2) a “fundamental miscarriage of justice” occurred. Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 2014).

         Here, petitioner offers no explanation for failing to raise his challenge to the information before entering into a plea agreement or on appeal, other than his claims of ineffective assistance of counsel addressed below. Even if he could establish cause, it is also apparent that he was not prejudiced by any default. In both of his challenges to the information, petitioner challenges its sufficiency. Pursuant to Federal Rule of Criminal Procedure 7(c), an indictment must “be a plain, concise, and definite written statement of the essential facts constituting the offense charged ….” Each count must “give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” Id.

         At best, petitioner's arguments are unclear and may have been copied and pasted from other, similar motions (he claims at one point that the “indictment” did not include a drug quantity and at another point that the jury did not receive proper instructions). At bottom, however, petitioner maintains that he did not receive proper notice of the charges or potential penalties he was facing. In particular, petitioner argues that the indictment provided insufficient notice because, while it referred to § 846 and § 841(a)(1), it did not cite to the penalty portion in § 841(b). As an initial matter, penalty provisions are not required in an indictment, because they are not an element of the crime charged. United States v. Bock, 312 F.3d 829, 830 (7th Cir. 2002). While an indictment must make the defendant aware that a penalty may apply if he is convicted of the substantive offense, see United States v. Ocampo, 890 F.2d 1363, 1373 (7th Cir. 1989), by citing to § 841(a)(1), the indictment here makes it clear that the provisions of § 841(b) could apply to him, something further explained in the petitioner's plea agreement and likely during his plea hearing. (See Plea Agreement, No. 16-cr-99 (dkt. #14) at 1.)[2] Likewise, petitioner would challenge the information on the ground that it lacked an allegation of criminal intent. Yet the express language of the information __ charging petitioner with knowingly attempting to possess methamphetamine with intent to distribute it __ contradicts petitioner's assertion. The court is confident that a transcript of his plea hearing includes a similar admission consistent with its standard practice. Accordingly, even assuming petitioner has good cause to excuse the failure to challenge his indictment, petitioner has failed to allege any prejudice by virtue of either of the challenges to the information. Indeed, both challenges plainly fail on the merits.

         II. Assertions of Ineffective Assistance of Counsel

         Petitioner also claims that his counsel was ineffective by either failing to challenge the conspiracy charge or to ensure that the guilty plea was knowing and voluntary. Petitioner has not defaulted his claims of ineffective assistance of counsel by failing to raise them in a direct appeal, since the resolution of such claims generally involves facts outside the record and are more appropriately raised by collateral attack. See Massoro v. United States, 538 U.S. 500, 504 (2003) (“in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance”). Still, petitioner has failed to demonstrate that he would be entitled to relief under the demanding standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

         Under Strickland, a petitioner must demonstrate both constitutionally deficient performance by counsel and actual prejudice as a result of the alleged deficiency. See Williams v. Taylor,529 U.S. 390, 39091 (2000). In the context of a guilty plea, the prejudice prong requires a showing that there is a reasonable probability that but for counsel's deficient performance, the petitioner would not have pleaded guilty but would have ...


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