The opinion of the court was delivered by: Judge Greer
Ricardo Sanchez-Lopez ("petitioner" or "Sanchez-Lopez"), a federal prisoner, has filed a motion pursuant to Title 28 United States Code section 2255, [Doc. 22 in case number 2:07-CR-20]. See 28 U.S.C. § 2255 (2008). This Court has reviewed the motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings For The United States District Courts and has determined that the petition and record of prior proceedings in the case conclusively establish that the petitioner is not entitled to relief under section 2255 and, therefore, no evidentiary hearing is necessary and no answer or other response from the United States is required. For the reasons which follow, the petitioner's section 2255 motion lacks merit, and the petition will be DENIED.
I. Procedural and Factual Background
Sanchez-Lopez was indicted by the federal grand jury on March 6, 2007, in a one count indictment which charged him with knowingly and unlawfully entering the United States, after having been previously deported, without the express consent of the Attorney General or the Secretary of Homeland Security in violation of Title 8 United States Code section 1326(a)(1) and (2), [Doc. 1]. On May 15, 2007, Sanchez-Lopez pled guilty to that offense, and this Court sentenced him on August 20, 2007, to a term of imprisonment of 80 months, to be followed by a term of three years of supervised release, if the defendant was not deported. Judgment was entered on August 30, 2007, [Doc. 20]. The petitioner did not appeal his conviction or sentence, and his sentence was considered final on September 14, 2007. The petitioner timely filed this petition pursuant to Title 28 United States Code section 2255 on May 19, 2008.
At the Change of Plea Hearing, the following exchange took place between this Court, Assistant United States Attorney Harr, Defense Counsel Moore, the defendant, and his interpreter:
MS. HARR: On February 16, 2007 Special Agent Andy Perkins was called to the Hawkins County Jail. The person identified as Ricardo Sanchez-Lopez was completing a sentence for an attempted reckless aggravated assault offense. Special Agent Perkins submitted the fingerprints of Ricardo Sanchez-Lopez and determined that this person had the following convictions under the listed alias: 1988 vehicle theft in Florida in the name of Enrique (INDISCERNIBLE). March of'94, wanton endangerment and possession of forged instrument in Kentucky... under the name Miquel Castello. July'94, violation of probation in Kentucky, same name. October'03, disorderly conduct misdemeanor in Kingsport in the name of Ricardo Lopez. March'04, domestic assault misdemeanor in Kingsport, Ricardo Lopez. February, 2006 DUI, Third in Kingsport, Ricardo Lopez, and February 21st,'07, attempted reckless aggravated assault in Rogersville.
The Defendant was arrested on March 7th, 1994 and upon his release from the Kentucky convictions and was deported to Mexico at Larado on April 20, 1994. On May 1, 1997 he was taken into INS custody within the United States upon a release from violation of probation conviction, and again, deported to, to Mexico, this time at (INDISCERNIBLE), on May 27, 1997. A records check indicated that there has been no application to re-enter the United States by the Defendant.
MR. MOORE: Your Honor, in our previous conversations with Mr. Sanchez-Lopez, some of those convictions, I think, that Ms. Harr referred to were not his. But, but for the purposes of this case, we do agree that the State, the Kentucky State conviction that Ms. Harr referred to and for which he was deported one of the times was his. And the Probation Department obviously will make their own determination, I guess, of the exact nature of his previous criminal history, but I, I just want to put that on, on the record, Your Honor. Thank you.
THE COURT: Well, Counsel, I don't have the Indictment in front of me, but he's not indicted for an offense that requires proof of a prior conviction.
MS. HARR: We have filed a Notice of Intent.
THE COURT: Right, but the Indictment itself does not allege a prior aggravating felony.
MS. HARR: Not being an immigration case, it is not.
THE COURT: All right, Mr. Sanchez, you have heard Ms. Harr give the Court a summary of the proof the Government would offer in this case, and you have heard your attorney's addition to that. Except for the prior convictions stated by Ms. Harr, do you agree with the United States' summary of what you did in this case?
MR. SANCHEZ-LOPEZ: (ANSWER IN OWN LANGUAGE)
INTERPRETER: Yes, except for the ones that are not mine.
THE COURT: All right. The prior convictions?
INTERPRETER: All right. What-do you understand...?
THE COURT: You agree with everything except that you disagree that some of these convictions are yours? Is that a ...