United States District Court, E.D. Kentucky, Northern Division, at Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
Fernando Rocha Fuentes is an inmate confined in the Federal Correctional Institution located in Ashland, Kentucky. Fuentes has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal firearm conviction. [D. E. No.1] Fuentes has paid the $5.00 filing fee. [D. E. No.3] The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Fuentes' petition under a more lenient standard because he is not represented by an attorney, Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003), accepts his factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Having reviewed the petition, the Court must deny it because Fuentes can not pursue his claims under 28 U.S.C. § 2241.
On April 19, 2007, Fuentes was named in four counts of a nine count indictment charging conspiracy to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 846 (Count 1); possession of methamphetamine with intent to distribute (Count 5); and two counts of possession of a firearm in furtherance of separate drug trafficking crimes (Counts 6 and 7). United States v. Fernando Rocha Fuentes, No. 5:07-CR-00012-2 (W.D. Va. 2007) [D. E. No. 26, therein]
On September 26, 2007, Fuentes entered into a written plea agreement with the United States, in which he agreed to plead guilty to two of the four counts: Count 1 alleging drug conspiracy, and Count 6 alleging a firearms violation. [D. E. No. 121, p. 2, therein] During his guilty plea hearing, both the government and the district court explained to Fuentes that the mandatory minimum terms associated with these two counts would be a 10-year term on Count 1 and 5-year term on Count 6. On October 11, 2007, the district court sentenced Fuentes to a 150-month prison term on Count 1 and a consecutive 60-month prison term on Count 6, the firearms charge. [D. E. No. 173, therein] Fuentes did not appeal.
On October 20, 2008, Fuentes filed a motion seeking relief from his sentence under 28 U.S.C. § 2255, alleging that his counsel provided ineffective assistance by (1) forcing him to accept a plea agreement with the United States, and (2) failing to file an appeal regarding the weapons charge after he expressly directed him to do so. [D. E. No. 185, therein] The district court referred Fuentes' § 2255 motion to a Magistrate Judge, who on June 9, 2009, held an evidentiary hearing on Fuentes' claim that his counsel failed to pursue and appeal on his behalf. [D. E. No. 211, therein]
On June 23, 2009, the Magistrate Judge issued a Report and Recommendation ("R & R") concluding that both of Fuentes' ineffective assistance of counsel claims lacked merit, and that his § 2255 motion should be denied. [D. E. No. 214, therein]; see also Fuentes v. United States, No. 5:08-CV-80101, No. 5:07-CR-12-2, 2009 WL 1806660 (W.D. Va. June 23, 2009). On July 8, 2009, the district court adopted the R & R, overruled Fuentes' objections thereto, and denied Fuentes' § 2255 motion. [D. E. No. 216, therein]; see also Fuentes v. United States, No. 5:08-CV-80101, No. 5:07-CR-12-2, 2009 WL 2016348 (W.D. Va. July 8, 2009).
Fuentes appealed, but the Fourth Circuit Court of Appeals denied him a certificate of appealability and dismissed his appeal, finding that he had not made "a substantial showing of the denial of a constitutional right." [D. E. No. 224, therein]; see also United Stated v. Fuentes, No. 09-7332 (4th Cir. Sept. 13, 2010).
CLAIMS ASSERTED IN THE § 2241 PETITION
In the his § 2241 petition, Fuentes argues that the district court erred in denying his § 2255 motion, and that it failed to consider "the substantive claims asserted by petitioners they impacted his right to counsel under the Fourth Amendment and due process." [D. E. No.1, p. 2]
Fuentes also asserts that his counsel rendered ineffective assistance when he failed to apprise the district court that his (Fuentes') knowledge of the English language was extremely limited. [ Id., p. 3] In his § 2241 petition, Fuentes alleges that the Plea Agreement was written in English and was not translated into Spanish, his native language, id., but in his attached "Argument of Law and Citation of Authority, " Fuentes contradicts that assertion, stating, "While his plea was translated to Spanish, his court-appointed counsel was not bilingual and incapable of understanding petitioner's claim that he did not own or possess a gun." [D. E. No. 1-2, p. 2 (emphasis added)] Fuentes further contends that as to the facts pertaining to the ownership of the gun, his counsel failed investigate and present "evidence that was inherently exculpatory in nature, " id., and that his counsel incorrectly represented to him that the district court would ignore the gun charge because the district court "... was only concerned with the pending charge of conspiracy." [Id.]
Fuentes argues that based on these facts, he received ineffective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution, and that his guilty ...