United States v. Guardiola

1

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. JESSE GUARDIOLA, Defendant-Petitioner.

No. 2:16-cr-20045-SLD-TSH-1

United States District Court, C.D. Illinois, Urbana Division

March 27, 2023

ORDER

SARA DARROW CHIEF UNITED STATES DISTRICT JUDGE

Before the Court are Defendant-Petitioner Jesse Guardiola's pro se motion to vacate under 28 U.S.C. § 2255 (“Pro Se 2255 Motion”), ECF No. 65, counseled Amended Motion to Vacate Sentence Pursuant to 28 U.S.C § 2255 (“Amended Counseled 2255 Motion”) ECF No. 80, pro se motion for status, ECF No. 85 and counseled motion for a status conference, ECF No. 87. For the reasons that follow, the Amended Counseled 2255 Motion is DENIED, and the remaining motions are MOOT.

BACKGROUND

On June 8, 2016, Guardiola was indicted by a grand jury on five counts of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Indictment 1-3, ECF No. 1. Assistant Federal Public Defender (“AFPD”) Elisabeth Pollock was appointed to represent him. See June 17, 2016 Min. Entry. On October 7, 2016 Guardiola pleaded guilty to the charges against him without a written plea agreement. See Oct. 7, 2016 Min. Entry.

The United States Probation Office (“USPO”) prepared a presentence investigation report (“PSR”) in advance of sentencing. PSR, ECF No. 31. USPO listed the offense conduct as including selling the following firearms to a confidential source: a Llama .380 caliber handgun, id. ¶ 14; two Norinco, Model SKS, 7.62 x 39 caliber firearms, id. ¶¶ 16, 17; a Hi Point, Model JHP, .45 caliber handgun, id. ¶ 17; and a Colt, Model MKIV Series 80, Officers ACP, .45 caliber handgun, id. ¶ 18. USPO applied a four-level enhancement on the basis that the offense involved eight firearms (the five Guardiola sold and an additional three that Guardiola allegedly showed the confidential source, id. ¶ 12). Id. ¶ 26. USPO found Guardiola's total offense level to be 31, id. ¶ 35, and his criminal history category to be V, id. ¶ 48. As such, it found his Sentencing Guidelines range for imprisonment to be 168 to 210 months. Id. ¶ 80.^[1] Guardiola faced a maximum term of imprisonment of ten years on each count. Id. ¶ 79 (citing 18 U.S.C. § 922(g)(1) and § 924(a)(2)).^[2] Guardiola filed two related objections to the PSR based on the number of firearms involved in the offense. Id. at 20-21. He contended he should only be accountable for the five firearms he sold and possessed. See id.

The sentencing hearing was held on February 17, 2017 before Judge Colin Bruce. Feb. 17, 2017 Min. Entry. At the hearing, the Government stated that it agreed with the objections and that Guardiola should have only been subject to a two-level enhancement for the number of firearms (five) rather than a four-level enhancement. See Sentencing Hr'g Tr. 5:9-15, ECF No. 53; id. at 6:4-11. Accordingly, Judge Bruce found that Guardiola's total offense level was 29, so with a criminal history category of V, the Sentencing Guidelines range for imprisonment was 140 to 175 months. Id. at 8:16-22. The Government recommended a sentence within the Guidelines range. Id. at 11:1-5. Guardiola asked for a sentence below the Guidelines range. Id. at 18:24-25. He made no specific recommendation as to supervised release. See id. At 19:16 (“Give him as much supervised release as you want.”). Judge Bruce sentenced Guardiola to a total of 140 months of imprisonment, id. at 27:23-28:5,^[3] and three years of supervised release, id. at 29:19-23.

Guardiola appealed. Not. Appeal, ECF No. 38. AFPD Pollock withdrew and Courtney Lang was appointed to represent Guardiola on appeal. See Mar. 6, 2017 Seventh Cir. Order, ECF No. 41. Guardiola subsequently voluntarily dismissed his appeal. See May 8, 2017 Mandate, ECF No. 50 (indicating that the appeal was dismissed pursuant to Federal Rule of Appellate Procedure 42(b) and Seventh Circuit Rule 51(f), which both provide for voluntary dismissal by motion of the appellant).

In February 2020, Guardiola filed the Pro Se 2255 Motion, in which he argued that Judge Bruce violated 28 U.S.C. § 455 and his due process rights by failing to recuse from the case, Pro Se 2255 Mot. 6, and that his plea was involuntary because at the time of his plea, it was not required that he know he was unable to possess a firearm, id. at 6-10. The due process and § 455(a) claims are based on ex parte communications Judge Bruce had with the United States Attorney's Office for the Central District of Illinois (“USAO”) which came to light in 2018. See United States v. Atwood, 941 F.3d 883, 884-85 (7th Cir. 2019) (providing a brief explanation of the discovery and disclosure of the communications).

The case was reassigned to this Court on February 21, 2020. See Feb. 21, 2020 Text Order. The Court appointed counsel to represent Guardiola, Mar. 27, 2020 Text Order, and counsel filed the Amended Counseled 2255 Motion, mooting or withdrawing the Pro Se 2255 Motion.^[4] In the Amended Counseled 2255 Motion, he asserts due process and § 455(a) claims based on Judge Bruce's ex parte communications. Am. Counseled 2255 Mot. 1-2. He also asserts that the Federal Public Defender's Office (“FPD”) provided him with ineffective assistance of counsel by failing to include claims based on Judge Bruce's ex parte communications in his appeal and by failing to obtain agreements with the Government to toll the time for him to bring his claims. Id. at 23-24.

The Government filed a response arguing that Guardiola cannot show that Judge Bruce was actually biased against him, that his “nonconstitutional appearance of bias claim is not a proper basis for relief in a § 2255 proceeding,” that he waived his right to assert the appearance of bias claim by dismissing his appeal,^[5] that he procedurally defaulted his appearance of bias claim by failing to raise it on appeal, and that the appearance of bias claim is untimely.^[6] Resp. 26-27, ECF No. 84. It also argues that Guardiola's ineffective assistance of counsel claims are meritless and suggests that the Court does not have jurisdiction to consider this motion. See Id. at 27.

The Court ordered Guardiola to file a response addressing the Court's jurisdiction, see Jan. 31, 2023 Text Order, which he filed on February 13, 2023, Def.'s Resp. Jurisdiction, ECF No. 86.

DISCUSSION

I. Legal Standard

A prisoner in federal custody may move the court that imposed his sentence to vacate, set aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to 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). Accordingly, such relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255(a)).

II. Analysis

The Court first addresses the Government's jurisdiction argument as that applies to all of Guardiola's claims and then addresses each of Guardiola's claims and any defenses specific to those claims.

A. Jurisdiction

“A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). A district court lacks jurisdiction to consider a successive § 2255 motion unless the petitioner first obtains authorization from the court of appeals to file the motion. See Burton v. Stewart, 549 U.S. 147, 152 (2007); Phillips v. United States, 668 F.3d 433, 436 (7th Cir. 2012).

Guardiola filed a petition for a writ of habeas corpus under 28 U.S.C § 2241 in late 2019 arguing that he was actually innocent of his § 922(g) convictions after the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). See Pet. Writ Habeas Corpus 7,^[7]Guardiola v. Entzel, No. 2:19-cv-02287-JBM (C.D. Ill.) (Doc. 1). In Rehaif, the Supreme Court held that, “in a prosecution under 18 U.S.C. § 922(g) and § 942(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S.Ct. at 2200; see United States v. Maez, 960 F.3d 949, 954-55 (7th Cir. 2020) (clarifying that Rehaif held only that the must prove knowledge of status, not knowledge that one's status prevents one from possessing a firearm). Guardiola was convicted and sentenced prior to the decision in Rehaif. Judge Joe Billy McDade denied the petition on the merits after “assu[ming], for the sake of argument,” that Guardiola could proceed under § 2241. Guardiola v. Entzel, Case No. 2:19-cv-2287, 2020 WL 68584, at *2-3 (C.D. Ill. Jan. 7, 2020). He concluded that Guardiola was aware that he was a felon, so Rehaif offered him no relief. Id.

Courts sometimes treat motions filed by prisoners as motions under § 2255 even if they are not labeled as motions under § 2255. See Castro v. United States, 540 U.S 375, 377 (2003). For example, the Seventh Circuit has explained that “a postconviction motion that is functionally, substantively, a motion under section 2255 (the federal prisoner's habeas corpus substitute) should be treated...