IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

ROBERTO QUILES GONZALEZ, :

 Petitioner, :

v. : CIVIL NO. 07-1797

: CRIMINAL NO. 05-123-16

UNITED STATES OF AMERICA, :

Respondent. :

____________________________________:

MEMORANDUM OPINION & ORDER

RUFE, J. August 20, 2007

Presently before the Court is Petitioner Roberto Gonzalez’s Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2255, in which he attempts to collaterally attack his guilty plea

and sentence. The Petition presents the questions of whether and to what extent collateral-attack

waivers in guilty-plea agreements are enforceable to preclude defendants from seeking habeas relief.

The Government’s Motion to Dismiss argues that Petitioner’s claims are wholly precluded by a

collateral-attack waiver to which he knowingly and voluntarily agreed in his guilty-plea agreement.

Based on recent Third Circuit precedent, the Court cannot agree. Consequently, the Court has

considered the substance of Petitioner’s claims, but has ultimately determined that they are without

merit. 

I. PROCEDURAL HISTORY

On February 10, 2006, Petitioner pleaded guilty to conspiracy to distribute more than

one kilogram of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). The charges

to which Petitioner pleaded guilty stemmed from his involvement in a sizable drug-dealing

conspiracy operating in and around Allentown, Pennsylvania. Pursuant to his guilty plea, Petitioner

read and signed a plea agreement in which he agreed that he would neither appeal nor present any

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 1 of 14
 See N.T. Change of Plea Hr’g 2/10/06, at 18:10–19:16, 20:5–12. 

1

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collateral challenge to his conviction or sentence, absent certain enumerated circumstances. By

agreeing to the waiver provision, Petitioner “voluntarily and expressly waive[d] all rights to appeal

or collaterally attack [his] conviction, sentence, or any other matter relating to [the] prosecution.”

Under the provision, Petitioner would be permitted to present a challenge under only four

circumstances: (1) if the Government appealed his sentence; (2) if his sentence on any count

exceeded the statutory maximum for that count; (3) if the Court erroneously departed upward; or (4)

if the Court imposed an unreasonable sentence above the range provided by the United States

Sentencing Guidelines.

At Petitioner’s plea hearing, the Court thoroughly reviewed this waiver with him,

ensuring that he was agreeing to the provision knowinglyand voluntarily. Petitioner confirmed that 1

he agreed to waive his rights. On June 28, 2006, the Court sentenced Petitioner to the mandatory

minimum term of imprisonment: 120 months. Almost one year later, on June 6, 2007, Petitioner

filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255 asserting three grounds

for relief: (1) that his counsel provided ineffective assistance by failing to file an appeal, and by

failing to perform adequately at his sentencing, change-of-plea hearing, and during pretrial discovery;

(2) that his counsel wrongly advised him during plea negotiations, and wrongly induced him to enter

into a plea agreement; and (3) a possible Apprendi violation. The Government responded to the

Petition by filing a Motion to Dismiss, in which it argues that the Petitioner’s claims should be

dismissed based on the appeal and collateral-attack waiver, which, it argues, Petitioner entered

knowingly and voluntarily. The Court is now ready to review the Petition and the Government’s

Motion.

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 2 of 14
 See United States v. Khattak, 273 F.3d 557, 558, 560–61 (3d Cir. 2001) (noting that ten other courts of 2

appeals have upheld appeal waivers and, subsequently, upholding appeal waivers in the Third Circuit).

 Id. at 561 (quoting United States v. Mezzanatto, 513 U.S. 196, 201 (1995)). 

3

 Id. at 562. 

4

 Id.; see also id. at 563. 5

 See United States v. Shedrick, No. 04-2329, ___ F.3d ___, 2007 WL 2051032, at *5 (3d Cir. July 19, 6

2007); see also United States v. Akbar, 181 Fed. Appx. 283, 286–87 (3d Cir. 2006); United States v. Perry, 142 Fed.

Appx. 610, 612 (3d Cir. 2005). Additionally, at least five other circuit courts of appeals have upheld the

enforceability of collateral-attack waivers. See Johnson v. United States, No. 06-4475, 2007 WL 2033420, at *4

(D.N.J. July 10, 2007) (citing cases from the Fifth, Sixth, Seventh, Ninth, and Tenth Circuits). 

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II. DISCUSSION

A. Enforceability of Appeal and Collateral-Attack Waivers

At least eleven of the United States Courts of Appeals, including the Third Circuit

Court of Appeals, have held that appeal-waiver provisions in guilty-plea agreements are generally

permissible and enforceable. This conclusion is based at least partially on the premise that “‘[a] 2

criminal defendant may knowingly and voluntarily waive manyof the most fundamental protections

afforded by the Constitution.’” In United States v. Khattak, the Third Circuit held that as long as

3

the criminal defendant knowingly and voluntarily agrees to the waiver provision, the provision is

valid, though it should be strictly construed. Even if the waiver is wholly valid, however, the 4

preclusive effect of the waiver is not absolute. The defendant may avoid an otherwise valid appeal

waiver in the face of “an error amounting to a miscarriage of justice.”5

While the Third Circuit still has not explicitly stated that collateral- attack waivers

are enforceable, the court has recently indicated its willingness to apply the logic underlying Khattak

to those waiver provisions. In the recent case of United States v. Shedrick, the court of appeals 6

implicitly held that collateral-waiver provisions are generally enforceable unless their enforcement

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 3 of 14
 See Shedrick, 2007 WL 2051032, at *5. This approach is in line with the approach established in Khattak 7

for dealing with appeal-waiver provisions. 

 Id. at *5. 8

 Khattak, 273 F.3d at 563. Instead, courts were to consider the factors identified in United States v. 9

Teeter, 257 F.3d 14 (1st Cir. 2001), including: “‘the clarity of the error, its gravity, its character (e.g., whether it

concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the

impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.’” 

Khattak, 273 F.3d at 563 (quoting Teeter, 257 F.3d at 25–26). 

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would result in a miscarriage of justice. In that case, a criminal defendant who pleaded guilty to 7

being a felon in possession of a firearm signed a plea agreement that included a provision waiving

his right to file a direct appeal or collaterally attack his conviction or sentence, other than in certain

specified circumstances. After his original counsel failed to file a timely direct appeal, new counsel

was appointed. New counsel filed a petition for collateral relief under 28 U.S.C. § 2255, which the

district court denied. Subsequently, Shedrick filed a pro se petition for a certificate of appealability,

which the Third Circuit granted in order to consider two ineffective-assistance-of-counsel claims.

In considering the appeal, the court acknowledged that Shedrick had agreed to a

collateral-attack waiver when he pleaded guilty. Nonetheless, it decided to consider the merits of

his ineffective-assistance-of-counsel claims because “[e]nforcing a collateral-attack waiver where

constitutionally deficient lawyering prevented Shedrick from understanding his plea or from filing

a direct appeal as permitted by his plea agreement would result in a miscarriage of justice.” In 8

deciding to exercise its jurisdiction to consider Shedrick’s claims, the court noted that the standard

miscarriage-of-justice inquiry was left open-ended in Khattak—that is, the Khattak court chose not

to “earmark specific situations” in which appeal and collateral-attack waivers should be invalidated.9

But immediately thereafter, the court referenced the Seventh Circuit’s holding that “ineffective

assistance of counsel qualifies as a miscarriage of justice sufficient to overcome a waiver-of-appeal

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 4 of 14
 See Shedrick, 2007 WL 2051032, at *10 n.6. 

10

 See id. at *5. 11

 Before Shedrick, courts in this Circuit generally upheld plea-agreement provisions in which a criminal 12

defendant waived his collateral-attack rights when the waiver provision was entered knowingly and voluntarily. See,

e.g., Johnson, 2007 WL 2033420; Valentin v. United States, No. 06-1426, 2007 WL 1314888 (E.D. Pa. May 4,

2007); United States v. Miles, No. 05-658, 2007 WL 218755, at *6 (E.D. Pa. Jan. 26, 2007) (collecting district-court

cases). Some courts, both in this Circuit and others, limited the applicability of collateral-attack waivers only when

the defendant asserted that his counsel was ineffective in negotiating the waiver provision itself, since such error

could result in an unknowing or involuntary assent to the provision. See, e.g., United States v. White, 307 F.3d 336,

343 (5th Cir. 2002); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998); United States v. Lit, No. 07-903,

2007 WL 1725199, at *5 (E.D. Pa. June 12, 2007). This approach has some logical appeal: if the exception extends

beyond ineffective assistance directly related to negotiating the waiver provision itself, then a convicted criminal

defendant can circumvent a valid appeal waiver by alleging ineffective assistance of counsel on collateral attack,

forcing the Government to expend the resources that it explicitly bargained to preserve. See White, 307 F.3d at 344.

Unless counsel was ineffective in a way that renders the defendant’s agreement to the waiver provision unknowing or

involuntary, it would be prudent for the provision to effect its intended result: preclusion of a collateral attack. 

But the Third Circuit has now suggested that the preclusive effect of collateral-attack waivers may be

limited when a habeas petitioner alleges a claim that his counsel provided constitutionally ineffective assistance. See

Shedrick, 2007 WL 2051032, at *5, *10 n.6. Since the Third Circuit has now spoken on this issue, the Court is

required to follow its mandate. 

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provision.” This reference, in conjunction with the court’s conducting a merits analysis and in the 10

absence of any further discussion of the miscarriage-of-justice standard, suggests that the Third

Circuit is likely willing to adopt the Seventh Circuit’s ineffective-assistance-constitutingmiscarriage-of-justice reasoning in the context of collateral-attack waivers.

Essentially then, the court held that a collateral-attack waivershould not be enforced

if a habeas petitioner has alleged potentially viable ineffective-assistance-of-counsel claims, since

refusing to consider and to remedy such claims, if true, would result in a miscarriage of justice.11

In the absence of a more clear dictate from the Third Circuit Court of Appeals concerning when a

collateral-attack waiver precludes a defendant from pursuing claims of injustice through a habeas

petition, this Court believes that district courts are obligated to consider at least some ineffectiveassistance-of-counsel claims, even when the petitioner has agreed to a collateral-attack waiver.12

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 5 of 14
 It should be noted that, at Petitioner’s change-of-plea hearing, the Court asked Petitioner whether he was 13

satisfied with his counsel’s representation. Petitioner’s response was, “He’s been magnificent.” See N.T. Change of

Plea Hr’g 2/10/06, at 9:22–24. Nonetheless, he now attempts to claim that his counsel was ineffective from the very

beginning of his representation.

 Petr.’s Pet. for Writ of Habeas Corpus [Doc. # 636], at 6. 14

 Id. 

15

 See Shedrick, 2007 WL 2051032, at *5. 16

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B. Effect of the Collateral-Attack Waiver in Petitioner’s Plea Agreement

Petitioner has asserted three claims in his Petition for Writ of Habeas Corpus. His

first two claims involve assertions that his counsel provided ineffective assistance. In these claims,

13

he asserts that: (1) his counsel was ineffective by failing to file an appeal even though he requested

that his counsel do so; (2) his counsel was ineffective during pretrial discovery, at his change-of-plea

hearing, and at his sentencing; and (3) his counsel was ineffective by wrongly advising him to sign

a plea agreement based “on the weight of the entire package drug conspiracy.” His only other claim 14

is that there was a “possible Apprendi violation at the critical phase[s] of [his] sentencing and plea

bargain.”15

1. The Ineffective-Assistance-of-Counsel Claims 

By its plain language, the collateral-attack waiver to which Petitioner agreed in his

plea agreement precludes the assertion of ineffective-assistance claims on collateral attack, such as

through a habeas petition. As discussed above, however, under Shedrick, the Court should not

enforce a collateral-attack waiver in the face of allegations that constitutionally deficient lawyering

may have prejudiced the habeas petitioner, including allegations that ineffective assistance may have

caused the petitioner to enter a guilty plea that he did not understand or fully appreciate. As a 16

result—and in order to err on the side of caution in light of the uncertainty surrounding the

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 6 of 14
 530 U.S. 466 (2000). 17

 Id. at 490 (emphasis added). 18

 466 U.S. 668, 687 (1984). 19

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enforceability of collateral-attack waivers in the face of ineffective-assistance claims—the Court will

not strictly enforce the collateral-attack waiver in Petitioner’s plea agreement to preclude

consideration of his ineffective-assistance claims. Instead, the Court will consider the merits of

Petitioner’s claims as if he had not agreed to the collateral-attack waiver. 

2. The Apprendi Claim

In addition to his ineffective-assistance claims, Petitioner suggests that he was

sentenced in violation of Apprendi v. New Jersey. In Apprendi, the Supreme Court held that, 17

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”18

As such, when a habeas petitioner alleges a violation of the rule announced in Apprendi, he is

inevitablyalleging, at a minimum, that his sentence exceedsthe statutory maximum. Since the terms

of the waiver provision in Petitioner’s plea agreement permit him to raise claims on appeal or

collateral attack that his sentence on any count “exceeds the statutory maximum for that count as set

forth in [the plea agreement],” the collateral-attack waiver does not preclude Petitioner from

attempting to assert his final claim. Thus, the Court is compelled to consider the merit of this claim.

C. Whether Petitioner’s Claims Warrant Relief 

1. The Ineffective-Assistance-of-Counsel Claims

Under the well-settled test set forth in Strickland v. Washington, a habeas petitioner 19

claiming ineffective assistance of counsel “must demonstrate that his attorney’s performance was

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 7 of 14
 Shedrick, 2007 WL 2051032, at *5 (citing and quoting Strickland, 466 U.S. at 688, 694). 20

 Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (citing Mayberry v. Petsock, 821 F.2d 179, 21

187 (3d Cir.), cert denied, 484 U.S. 946 (1987)). 

 Id. 

22

 Id. at 301 (“[B]ald assertions and conclusory allegations do not provide sufficient ground to warrant 23

requiring the state to respond to discovery or to require an evidentiary hearing.”) (“We will not require an

evidentiary hearing absent identification of some facts that support a contention of ineffectiveness . . . .”); see also id.

at 298 n.12.

 Id. 

24

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deficient and that he was prejudiced by the deficiency. . . . That is, he must prove that counsel’s

performance ‘fell below an objective standard of reasonableness,’ and that ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” A petitioner cannot meet this burden, however, “based on vague and conclusory 20

allegations [of error] . . . . Rather, he must set forth facts to support his contention.” A petitioner 21

who fails to do so “is not entitled to habeas relief” on his unsupported claims of ineffective

assistance. Moreover, when a petitioner fails to identify facts supporting his contention of 22

ineffective assistance, but instead offers nothing more than “bald assertions and conclusory

allegations,” he is not entitled to an evidentiary hearing under 28 U.S.C. § 2255. In fact, holding 23

an evidentiary hearing in light of such unsupported conclusory allegations is disfavored because

doing so “ will encourage meritless petitions burdening judicial resources.”24

In this case, Petitioner has failed to allege any intelligible and meaningful facts in

support of his bald assertions that counsel was ineffective. First, he claims that his counsel was

ineffective by failing to file a direct appeal, but alleges nothing more, such as what viable grounds

exist for an appeal, how counsel could appeal his guilty plea and/or sentence in light of the appeal

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 8 of 14
 It appears that Petitioner attempted to attach to his original pro se motion a statement of allegations 25

addressing his failure-to-file-an-appeal claim. See Doc. # 628, at 8–9. This filing was later supplanted by his filing

on the Court’s current standard form for § 2255 motions. When Petitioner complied with the Court’s Order to re-file

on the standard form in accordance with the Local Rules of Civil Procedure, he did not attach the same or a similar

statement. Regardless, the statement attached to the original filing—which was incomplete and virtually

unintelligible—adds nothing to the Court’s analysis because it also fails to allege facts to support the contention that

counsel was ineffective. For example, it fails to allege any viable grounds for appeal, especially in light of the appeal

waiver. Likewise, it fails to allege when Petitioner asked his counsel to appeal; if he asked counsel to appeal well

after the deadline to take an appeal had passed, then obviously there could be no ineffective assistance for failing to

heed his request. 

 See Zettlemoyer, 923 F.2d at 298. 26

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waiver, or how and when he requested that his attorney file an appeal. Next, he claims that counsel 25

“failed” during pretrial discovery, at his change-of-plea hearing, and at his sentencing. Petitioner

does not, however, identify how counsel failed, ignoring his obligation to allege facts in support of

his claim of ineffectiveness. Finally, he claims that his counsel wrongly advised him to enter the

plea agreement based “on the weight of the entire package drug conspiracy.” Unfortunately,

Petitioner does not explain the basis of this claim, or provide the Court with a clear understanding

of the nature of the claim. Importantly, Petitioner has again failed to identify how counsel was

ineffective—that is, Petitioner has not informed the Court how counsel’s advice during plea

negotiations fell below an objective standard of reasonableness. Ultimately, Petitioner is neither

entitled to an evidentiary hearing nor the writ of habeas corpus based on his ineffective-assistanceof-counsel claims. He has completely failed to support his general allegations that his counsel

provided deficient representation, and the Court is neither responsible for nor capable of making his

claims for him. Without some factual basis, the Court cannot give his claims meaningful

consideration. Under applicable Third Circuit precedent, because Petitioner has failed to set forth 26

facts in support of the contention that his counsel provided ineffective assistance, he is not entitled

to relief. Accordingly, the Court will not grant him the writ on these claims. 

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 9 of 14
 530 U.S. 466 (2000). 27

 Id. at 490. As noted above, the fact of a prior conviction is not subject to this requirement. 28

 United States v. Cartagena, 78 Fed. Appx. 796, 799 (3d Cir. 2003) (citing United States v. Williams, 235 29

F.3d 858 (3d Cir. 2000)) (not precedential); see also Williams, 235 F.3d at 863 (“[W]e hold that Apprendi is not

applicable to Williams’ sentence, because the sentence actually imposed (seven years and one month) was well under

the original statutory maximum of 20 years.”).

 See Cartagena, 78 Fed. Appx. at 799 (“Distribution of 100 grams or greater of heroin, to which 30

Cartagena admitted in his plea, carries a maximum penalty of 40 years imprisonment. Cartagena was sentenced to a

lesser amount.” (internal citation omitted)). 

 See N.T. Change of Plea Hr’g 2/10/07, at 25–27. 31

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2. The Apprendi Claim 

Petitioner’s only other claim is that there was a “possible Apprendi violation at the

critical phase of sentencing and plea bargain.” While the intricacies of this claim are unknown to

the Court because Petitioner has, again, failed to discuss or to identify the exact error, it appears that

Petitioner is asserting that his sentence was imposed in violation of Apprendi v. New Jersey. As 27

briefly discussed above, Apprendi requires that facts that increase the penalty for a crime above the

statutory maximum be proven beyond a reasonable doubt and be determined by a jury. But, as the 28

Third Circuit has previously held, “[w]here the sentence imposed [is] under the applicable statutory

maximum, Apprendi is not triggered.” Thus, if a criminal defendant admits in his guilty plea that 29

he participated in a conspiracy that distributed a certain quantity of drugs, and he is later sentenced

to a prison term that is less than the statutory maximum prison term for the offense to which he has

pleaded guilty, then there can be no Apprendi violation.30

In this case, Petitioner admitted on the record—and the parties stipulated—that more

than one, but less than three kilograms of heroin was distributed in furtherance of the conspiracy

during the period of his participation. Under 21 U.S.C. § 841, a defendant who pleads guilty to 31

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 10 of 14
 See 21 U.S.C. § 841(b)(1) (2006). 32

 N.T. Change of Plea Hr’g 2/10/06, at 24:9–11. 33

 Id. at 24:20–23. 

34

 See Cartagena, 78 Fed. Appx. at 799. 

35

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distributing “1 kilogram or more of a mixture or substance containing a detectable amount of

heroin . . . shall be sentenced to a term of imprisonment which may not be less than 10 years or more

than life . . . .” Therefore, Petitioner faced a maximum sentence of life in prison, and he was 32

informed of this possibility during his change-of-plea hearing. Moreover, he acknowledged that 33

he understood the penalties that he faced as a result of his guilty plea. At sentencing, however, the 34

Court imposed a much more lenient sentence than the statutory maximum: Petitioner was sentenced

to 120 months in prison, the mandatory minimum sentence for a violation of the statute under which

he pleaded guilty. Since Petitioner was sentenced to less than the statutory maximum for the crimes

to which he pleaded guilty, there can be no Apprendi violation. Accordingly, Petitioner’s final 35

claim is without merit, and the Court will not grant Petitioner the relief that he seeks based on this

claim.

III. CONCLUSION

For the reasons outlined above, the Court will deny the Government’s Motion to

Dismiss, and, after considering Petitioner’s claims, will also deny the Petition for Writ of Habeas

Corpus, on grounds other than those argued in the Government’s Motion. 

Sometimes, when an individual entangles himself in the wrongdoing of a criminal

conspiracy, the law exacts a harsh punishment for his participation in furtherance of the conspiracy’s

goals. Such is the case for Mr. Gonzalez, whose low-level involvement in a massive drugCase 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 11 of 14
 See N.T. Change of Plea Hr’g 2/10/06, at 23–24, 25–26:11. 

36

 Id. at 24. 37

 N.T. Sentencing 6/28/06, at 4–5. 38

 Id. at 6:15–17. 39

 Id. at 6:20–23. 

40

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distribution conspiracy has landed him in prison for a lengthy stay. But Petitioner’s current plight

was not imposed upon him arbitrarily. Upon review of the record, the Court is convinced that

Petitioner knowingly and voluntarily pleaded guilty to the crimes for which he was sentenced,

admitted his participation in furtherance of the drug conspiracy, and acknowledged his willingness

to accept the resulting punishment. At his change-of-plea hearing, Petitioner admitted that during

his participation in the drug conspiracy, at least one kilogram of heroin was distributed to buyers in

the Allentown area. Under 21 U.S.C. § 841(b)(1)(A), therefore, his involvement in the conspiracy 36

carried with it a mandatory minimum sentence of ten years in prison, and a potential maximum

sentence of life in prison. He was explicitly informed of these facts at his change-of-plea hearing.37

Nonetheless, he pleaded guilty to the charged crimes. 

At his sentencing, the Court confirmed that, due to a prior drug conviction in Puerto

Rico, he was not eligible for a safety-valve departure downward from the mandatory minimum.38

As the Court noted, the guideline range for imprisonment was less than the mandatory minimum,

but “the Court ha[d] no discretion to not impose” the statutorily mandated minimum prison

sentence. The Court lamented its position: “I can tell you from what I know of Mr. Gonzalez’s role 39

in the particular drug ring, we don’t think he should be held as accountable as the higher ups. We

do understand his role to be that of a lower-level street dealer.” But in light of the mandatory 40

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 12 of 14
 See id. at 7:4–8. 41

 Id. at 7. 42

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minimum, the Court’s only inquiry was whether it should impose the statutory minimum or

something more. Considering the circumstances of Petitioner’s case, the Court determined that 41

“the mandatory minimum satisfie[d] the objectives of the [sentencing] statute . . . . [I]t is more than

enough time to protect the public, punish this defendant and deter him and others from committing

this offense.” Accordingly, the Court sentenced Petitioner to the mandatory statutory minimum: 42

120 months in prison.

Thus, Petitioner finds himself in a position that he now wishes to elude, but cannot.

He has no grounds on which to challenge his conviction (by guilty plea) or his sentence, both of

which are valid under the applicable law. The Court will not, therefore, disturb the status quo. 

An appropriate Order follows. 

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 13 of 14
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

ROBERTO QUILES GONZALEZ, :

 Petitioner, :

v. : CIVIL NO. 07-1797

: CRIMINAL NO. 05-123-16

UNITED STATES OF AMERICA, :

Respondent. :

____________________________________:

ORDER

AND NOW, this 20 day of August 2007, upon consideration of the Petition for th

Writ of Habeas Corpus Under 28 U.S.C. § 2255 [Doc. # 636], the Government’s Motion to

Dismiss the Petition [Doc. # 638], and the relevant legal authorities, it is hereby ORDERED

that:

(1) the Government’s Motion to Dismiss [Doc. # 638] is DENIED; 

(2) the Petition for Writ of Habeas Corpus [Doc. # 636] is DENIED and

DISMISSED without an evidentiary hearing; 

(2) there is no probable cause to issue a certificate of appealability; and

(3) the Clerk of Court shall CLOSE THIS CASE.

It is so ORDERED.

BY THE COURT:

/s/ Cynthia M. Rufe 

CYNTHIA M. RUFE, J.

Case 2:05-cr-00123-CMR Document 642 Filed 08/20/07 Page 14 of 14