IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 23, 2007
UNITED STATES OF AMERICA
JOSE MEDINA GARCIA
The opinion of the court was delivered by: (Judge Conner)
Presently before the court is defendant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1
Defendant asserts that he received ineffective assistance of counsel in violation of his Sixth Amendment rights under the United States Constitution. (Doc. 46 at 1.) Specifically, defendant claims that he asked counsel to appeal his sentence based on recent developments in Supreme Court jurisprudence regarding sentencing guidelines,*fn2 but counsel disregarded this request. (Doc. 46 at 4.) Because the record conclusively contradicts defendant's claim, the court will deny defendant's motion.
A. Procedural History
On September 4, 2003, defendant was charged with illegal re-entry into the United States by an alien who had been deported following an aggravated felony conviction.*fn3 (Doc. 1.) On January 5, 2004, defendant entered a plea of guilty pursuant to a written plea agreement. (See Docs. 13, 18, 19.) Defendant was sentenced on March 26, 2004, and judgment was entered. (Doc. 25.) Defendant did not file a direct appeal.
Defendant filed a habeas corpus motion (Doc. 29) pursuant to 28 U.S.C. § 2255 in the United States District Court for the Eastern District of Pennsylvania on April 13, 2005, and the matter was transferred to this court on venue grounds.*fn4 By order of court dated December 2, 2005 (Doc. 38), defendant was granted leave to either withdraw his initial § 2255 motion or to have the motion construed and ruled upon by this court. He elected to withdraw the motion with the intent of filing an all-inclusive motion under § 2255. (See Doc. 39.) Defendant filed the instant § 2255 motion (Doc. 45) on March 22, 2006, to which the United States filed a brief in opposition (Doc. 51).
In the instant case, defendant filed a § 2255 motion, asking the court to "vacate, set aside, or correct [his] sentence" based on his allegation of ineffective assistance of counsel. (Doc. 46.) A defendant claiming ineffective assistance of counsel in violation of the Sixth Amendment must show that: (1) counsel's representation was objectively unreasonable,*fn5 and (2) counsel's deficient performance was prejudicial.*fn6 See Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland v. Washington, 466 U.S. 688 (1984)). The Third Circuit has noted that "[p]rejudice is presumed from counsel's failure to file a notice of appeal when so requested by a client." Solis v. United States, 252 F.3d 289, 293-94 (3d Cir. 2001).
When a defendant is convicted of a crime and alleges that counsel failed to appeal the conviction, the defendant is generally entitled to a hearing to prove that he made the request and that counsel failed to act upon the request. Id. at 295. A defendant is not, however, entitled to a hearing if the "allegations [are] contradicted conclusively by the record, or if the allegations [are] patently frivolous." Id. After a thorough review of the record, the court concludes that defendant's claim is directly contradicted by the record. The government's brief in opposition (Doc. 51) includes a memorandum regarding a meeting between defendant, defendant's counsel, and an interpreter held seven days after judgment was entered. (See Doc. 51, Ex. A at 1.) The memorandum clearly refutes defendant's claim that he asked counsel to appeal, but counsel failed to act on the request. At the meeting, counsel, through the interpreter, reviewed defendant's right of allocution and right to appeal and discussed both the absence of good faith grounds for appeal and the possible negative outcomes of pursuing a meritless appeal.*fn7 (Id.) Defendant was aware of his rights to appeal, including the right to file a motion in arrest of judgment or a motion for correction of sentence and the right to appeal a final sentence imposed in violation of federal law. (Doc. 51, Ex. A at 2.) Defendant was also aware that "by entering a negotiated . . . plea of guilty, [he waived] an appeal of conviction or denial of pre-trial motions." (Id.) After defendant had been informed of his rights, he signed a memorandum, which provides:
By signing below, Jose Medina Garcia confirms the following:
 All questions were answered to Mr. Garcia's satisfaction.
 He does understand the sentence imposed by the court.
 He does understand his appeal rights.
 He does not wish to pursue an appeal to the Third Circuit Court of Appeals. (Doc. 51, Ex. A at 1(emphasis added)).*fn8 Accordingly, the court finds that defendant's allegation is contradicted conclusively by the record and will deny defendant's motion (Doc. 45) pursuant to 28 U.S.C. § 2255.
For the forgoing reasons, defendant's motion (Doc. 45) will be denied. An appropriate order will issue.
AND NOW, this 23rd day of March, 2007, upon consideration of defendant's motion (Doc. 45) to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that defendant's motion (Doc. 45) is DENIED.
CHRISTOPHER C. CONNER United States District Judge