United States District Court, E.D. Washington
ORDER DENYING § 2255 MOTION
F. SHEA SENIOR UNITED STATES DISTRICT JUDGE
the Court is a motion submitted by Antonio Aguilar-Lopez in
which he attacks his conviction and sentence for being an
alien in the U.S. after deportation. See ECF No.
Having previously provided Mr. Aguilar-Lopez with an
opportunity to either withdraw or amend his § 2255
motion, see ECF No. 144, and receiving nothing from
him within the allotted time, the Court denies his motion.
FACTS AND PROCEDURAL HISTORY 
4, 2007, Mr. Aguilar-Lopez was ordered removed from the
United States to Mexico by an immigration judge. Thereafter,
Mr. Aguilar-Lopez reentered the United States without
permission. On July 10, 2009, he was arrested in Benton
County, Washington. The Government filed an indictment
against Mr. Aguilar-Lopez on one count of Alien in the United
States After Deportation, in violation of 8 U.S.C. §
12, 2010, Mr. Aguilar-Lopez moved to dismiss the indictment
pursuant to 8 U.S.C. § 1326(d), arguing that under
Padilla v. Kentucky, 559 U.S. 356 (2010), he had
received ineffective assistance of counsel in connection with
the underlying Nevada state conviction. Mr. Aguilar-Lopez
alleged a failure of his counsel to advise him of the
immigration consequences of his guilty plea to the state
offense. The Court denied the motion, finding
Padilla did not apply retroactively.
23, 2010, Mr. Aguilar-Lopez entered a guilty plea pursuant to
a written plea agreement to Being an Alien in the United
States after Deportation in violation of 8 U.S.C. §
1326(a). On February 23, 2012, the Court sentenced Mr.
Aguilar-Lopez to ten months' imprisonment, three years of
supervised release, a $100 special assessment, and no fine.
On October 28, 2013, the United States Court of Appeals for
the Ninth Circuit affirmed his conviction. And on March 3,
2014, Mr. Aguilar-Lopez filed an untimely petition for writ
of certiorari with the United States Supreme Court that was
subsequently denied on April 21, 2014.
26, 2014, Mr. Aguilar-Lopez filed a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. That
§ 2255 motion was dismissed without prejudice, however,
when the Court granted Mr. Aguilar-Lopez's request to
voluntarily withdraw it.
September 23, 2016, the Nevada state court dismissed Mr.
Aguilar-Lopez's conviction in Case No. 07F09531, in which
he was charged with Trafficking in Controlled Substance,
Conspiracy to Violate Controlled Substance Act, and
Possession of Controlled Substance. On January 6, 2017, Mr.
Aguilar-Lopez filed a document labeled as a “Petition
for Writ of Habeas Corpus, ” and citing 28 U.S.C.
§ 2241, in the Central District of California. The
District Court for the Central District of California,
however, correctly construed that document as a disguised
motion seeking relief under 28 U.S.C. § 2255. As such,
on July 11, 2017, the case was transferred to this Court.
September 22, 2017, this Court entered an order notifying Mr.
Aguilar-Lopez that his motion would be construed as brought
under § 2255. See ECF No. 144. The Court
advised Mr. Aguilar-Lopez that “this recharacterization
means that any subsequent § 2255 motion will be subject
to the restrictions on ‘second or successive'
motions.” Castro v. United States, 540 U.S.
375, 383 (2003). The Court further warned Mr. Aguilar-Lopez
that an initial review suggested his motion lacked merit. The
Court therefore allowed Mr. Aguilar-Lopez to either amend or
withdraw his motion on or before Friday, October 27, 2017.
ECF No. 144. The Court, however, has not received any further
filings from Mr. Aguilar-Lopez.
Aguilar-Lopez alleges that his 2007 deportation proceedings
were unlawful because his underlying state conviction
(resulting from his plea of nolo contendere for misdemeanor
drug possession) was subsequently dismissed by the Nevada
state courts. See ECF No. 143 at 3. According to Mr.
Aguilar-Lopez, it was his Nevada conviction that was used as
the basis for his removal. Further, Mr. Aguilar-Lopez
seemingly views his Nevada conviction, his removal order, and
his judgment in this case as three dominos in a row. Mr.
Aguilar-Lopez contends that because the Nevada conviction has
fallen, his 2007 deportation was unlawful and must fall as
well. This, in turn, should topple his illegal-reentry
conviction in this matter and the resulting sentence.
Court need not decide, however, whether a removal order is
somehow rendered invalid simply because the underlying state
conviction is subsequently vacated. Here, it appears that Mr.
Aguilar-Lopez's Nevada conviction did not form the basis
of his 2007 removal. Instead, Mr. Aguilar-Lopez entered a
stipulated request for removal based on an “entry
without inspection” charge. See Case No.
4:17-CV-05095-EFS, ECF No. 7-1 at 127; see also 8
U.S.C. § 1182(a)(6)(A)(i). The immigration judge cited
to the charges contained in the Notice to Appear, which
stated the basis for removal was that Mr. Aguilar-Lopez was
not a citizen or national of the U.S.; he was a native of
Mexico and a citizen of Mexico; he arrived in the U.S. at or
near San Ysidro, California, on or about February 2007; and
he was not then admitted or paroled after inspection by an
immigration officer. See Case No. 4:17-CV-05095-EFS,
ECF No. 7-1 at 125. There is no indication that Mr.
Aguilar-Lopez's 2007 removal was in any way based on his
Nevada conviction. As such, Mr. Aguilar-Lopez has not shown
any basis for relief from the judgment in this case.
aforementioned reasons, IT IS HEREBY
1. Mr. Aguilar-Lopez's construed Motion
to Vacate, Set Aside, or Correct Sentence Pursuant to §
2255, ECF No. ...