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Herson Omar Barrera-Vasquez v. United States of America

February 1, 2011


The opinion of the court was delivered by: Sand, J.


Petitioner Herson Omar Barrera-Vasquez, appearing pro se, filed the instant petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner was found guilty after a jury trial in this Court of one count of illegal re-entry, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He now raises two grounds for relief. First, he claims that his deportation proceedings violated his rights of due process. Second, he claims ineffective assistance of immigration and trial counsel.

For the reasons set forth below, the petition is denied in its entirety.


The following facts are not in dispute. Petitioner is a citizen of El Salvador, and has never been a citizen of the United States of America. In May 1995 he was convicted of criminal sale of a controlled substance in the fifth degree in the Criminal Court of Nassau County, New York, and sentenced to between two and four years imprisonment. This conviction triggered removal proceedings by the United States Immigration and Naturalization Service,*fn1 which issued an Order to Show Cause and Notice of Hearing to Petitioner on February 20, 1997. The Order to Show Cause advised Petitioner:

If you fail to appear at any hearing after having been given written notice of the date, time and location of your hearing, you will be ordered deported in your absence . . . If you are ordered deported in your absence, you cannot seek to have that order rescinded except that (a) you may file a motion to reopen the hearing . . . if you are able to show that your failure to appear was because of exceptional circumstances, or (b) . . . if you can show that you did not receive written notice of your hearing . . . If you choose to seek judicial review of a deportation order entered in your absence, you may file a petition for review within 60 days (30 days if you are convicted of an aggravated felony) . . . .

Order to Show Cause & Notice of Hr'g, Feb. 20, 1997, Gov't Opp. Mem. Ex. B, at 4. On or about July 20, 2001, Petitioner was served with a Notice to Appear at a removal hearing, Gov't Opp. Mem. Ex. C, and on February 7, 2002, he was granted bail to attend the hearing, scheduled for August 2003. On November 27, 2002, Petitioner was arrested on a charge of petit larceny in Nassau County, and pled guilty on June 27, 2003, but failed to report to prison. A bench warrant was issued by the Nassau County Criminal Court on July 2, 2003.

Petitioner's removal hearing was held on August 12, 2003. Petitioner did not appear; his immigration counsel advised the Immigration Judge that Petitioner had been recently arrested, convicted, and sentenced on a petit larceny charge, failed to report to prison, and could not be located. The Immigration Judge held that Petitioner had been provided with appropriate notice of the hearing, and ordered his removal in absentia. A warrant for his removal was issued on August 12, 2003. Petitioner did not seek administrative review of the removal order and remained a fugitive until June 29, 2007, when he was arrested on drug and forgery charges in Nassau County. He was released by New York State to United States Immigration and Customs Enforcement ("ICE") custody in January 2008 and was deported to El Salvador in March 2008.

In November 2008, Petitioner was arrested by ICE agents in Hempstead, New York. On November 17, 2008, an indictment was filed in this Court charging him with one count of illegal re-entry, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Petitioner pleaded guilty on February 3, 2009, and on June 3, 2009, this Court sentenced him to 77 months imprisonment. Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Second Circuit. His trial counsel moved for permission to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), on the grounds that there were no non-frivolous issues on appeal. On July 14, 2010, the Second Circuit affirmed Petitioner's conviction and sentence by summary order and granted trial counsel's motion to withdraw. Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 on May 10, 2010.


a.Procedural Default

"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted).

While Petitioner fails to specify why his petition was not procedurally defaulted, he does not allege actual innocence, so he is left with the cause and actual prejudice standard. "Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) cause excusing his double procedural default, and (2) actual prejudice resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167 (1982) (internal quotation marks omitted). "In procedural default cases, the cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (internal quotation marks omitted). Such factors include official interference, "a showing that the factual or legal basis of a claim was not reasonably available to counsel," or constitutionally ineffective assistance of counsel-though attorney error short of this standard "does not constitute cause and will not excuse a procedural default." Id. at 493-- 94 (internal quotation marks and citations omitted).

The Government argues that Petitioner's two claims-of due process violations and ineffective assistance of counsel-are procedurally defaulted because he did not raise them in the underlying case adjudicated by this Court, or on direct appeal to the Second Circuit. However, the Supreme Court has held that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). Petitioner's claim of ineffective assistance of counsel relies solely on his immigration and trial counsel's failure to raise his due process claim. While the Government is correct that "the consequences of the procedural default doctrine cannot be avoided simply by making each and every procedural default the predicate for ...

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