Opinion
Case No. 2:03-CV-324TC
May 23, 2003
ORDER
On January 10, 2001, Petitioner Raul Herrera-Perez was indicted by the Federal Grand Jury for the District of Utah on a charge of illegal re-entry of a deported alien in violation of 8 U.S.C. § 1326. (Dkt.# 1) On February 21, 2001, a federal detainer was filed against Mr. Herrera-Perez with the Utah State Prison. (Dkt. # 4) Pursuant to a Writ of Habeas Corpus Ad Prosequendum, Mr. Herrera-Perez was taken into federal custody and appeared before the United States Magistrate on March 23, 2001, (Dkt # 7-8). He pled guilty on May 30, 2001. (Dkt. # 20) Following his plea of guilty, Mr. Herrera-Perez was sentenced on October 2, 2001, to 77 months custody. (Dkt. # 27).
Mr. Herrera-Perez has now filed a petition under 28 U.S.C. § 2255. As an initial matter, he has filed a Motion for Show Cause Order (to direct the government to file a response to his petition) and has requested an evidentiary hearing. Because the questions at issue in this case are wholly matters of law, neither an evidentiary hearing nor a government response will assist in the court's determination.
At the heart of his § 2255 petition is Mr. Herrera-Perez's argument that his attorney improperly advised [him] that [his] "intent or knowingly' [sic] to enter illegally into the United States was not a defense." (Pet. at 5.) However, this argument reflects Mr. Herrera-Perez's misunderstanding of the government's burden under 8 U.S.C. § 1326. The Tenth Circuit has held that [ 8 U.S.C. § 1326] expressly excludes any specific intent regarding entry into the United States and makes it a crime for a deported alien to be found "at any time' in this country unless' he has the `express' consent of the Attorney General." United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1165 (10th Cir. 1999). The Gutierrez-Gonzalez court further stated,
As we have previously held, "nothing more than a showing of general intent is required" and "the government need not show that defendant willfully and knowingly engaged in criminal behavior, but only that the defendant's acts were willful and knowing-that the defendant willfully and knowingly reentered the United States and that he did so without the Attorney General's permission."Id. (citing United States v. Miranda-Enriguez, 842 F.2d 1211, 1212 (10th Cir. 1988)). Under this Tenth Circuit rule, Mr. Herrera-Perez's attorney correctly informed him that lack of intent to reenter illegally is not a defense to the crime of illegal reentry.
Furthermore, Mr. Herrera-Perez at his change of plea hearing, confirmed that he "came back into the United States, and [he] did so knowing [he] was coming back into the United States, and [he] did it voluntarily." (Record at 18.) Moreover, he confirmed that he understood the proceedings, and that there was no reason why he could not "intelligently deal with this matter." (id. at 15.) Mr. Herrera-Perez's plea of guilty demonstrates that he knowingly and voluntarily re-entered the United States after having been deported, which is (as explained above) the only requirement of intent that must be met under 8 U.S.C. § 1326.
Accordingly, his petition is DENIED and DISMISSED.