IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RODOLFO GONZALEZ-CAMPOS,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

Case No. 2:13-cv-1248

Crim. No. 2:12-cr-204

Judge Peter C. Economus

MEMORANDUM OPINION AND ORDER

Petitioner was charged in this case with reentry into the United States on August 28, 2012 

after having been deported and removed from the United States on March 23, 2010 at Laredo, 

Texas, in violation of 8 U.S.C. § 1326(a). Information, ECF No. 12. Petitioner entered a plea of 

guilty pursuant to the Superseding Plea Agreement, ECF No. 16. On December 3, 2012, the 

Court imposed a sentence of time served. Judgment, ECF No. 25. Petitioner did not file an 

appeal from that judgment. This action challenges that conviction pursuant to the provisions of 

28 U.S.C. § 2255. On September 22, 2014, the Magistrate Judge recommended that the motion 

to vacate be dismissed. Order and Report and Recommendation, ECF No. 39. This matter is now 

before the Court on Petitioner’s objections to that recommendation. Objection, ECF No. 40. The 

Court will consider the matter de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). 

Petitioner alleges that he was denied the effective assistance of counsel because his 

attorney advised him to plead guilty rather than attack the March 16, 2010 removal order that 

resulted in his removal on March 23, 2010 (claim one); Petitioner also contends that he is 

actually innocent of the charge against him (claim two). In recommending the dismissal of the 

action, the Magistrate Judge reasoned, first, that Petitioner is not “in custody” for purposes of 

seeking relief under § 2255(a), because his sentence had completely expired prior to the filing of 

this action, see Maleng v. Cook, 490 U.S. 488 (1989), and that there is no applicable exception to 

Case: 2:12-cr-00204-PCE-NMK Doc #: 41 Filed: 10/20/14 Page: 1 of 2 PAGEID #: <pageID>
2

the custody requirement of § 2255. The Magistrate Judge also concluded that Petitioner was not 

entitled to a writ of error coram nobis because he does not allege an error of fact about which he 

was unaware at the time that he entered his guilty plea. See United States v. Johnson, 237 F.3d 

751, 755 (6th Cir. 2001). Finally, and adopting the reasoning of Judge Graham in United States of 

America v. Rudolfo Gonzalez-Campos, 2:13-cr-255, in which Petitioner had asserted the same 

claims, the Magistrate Judge concluded that Petitioner’s claims in this action were without merit.

Report and Recommendation, ECF No. 39. 

In his objections, Petitioner raises the same arguments presented to and rejected by the 

Magistrate Judge. Specifically, Petitioner asserts that he was “in custody” at the time that he filed 

this action or that he qualifies for an exception to the custody requirement. Alternatively, 

Petitioner argues that he is entitled to relief under the All Writs Act. Finally, Petitioner contends 

that the Magistrate Judge acted improperly in adopting Judge Graham’s reasoning when he 

rejected the same arguments in United States of America v. Rudolfo Gonzalez-Campos, 2:13-cr255.

Having performed the de novo review required by 28 U.S.C. § 636(b), this Court agrees 

with the reasoning of the Magistrate Judge and of Judge Graham in United States of America v. 

Rudolfo Gonzalez-Campos, 2:13-cr-255. 

Petitioner’s Objection, ECF No. 40, are OVERRULED. The Report and 

Recommendation, ECF No. 39, is ADOPTED and AFFIRMED. This action is hereby 

DISMISSED. 

The Clerk is DIRECTED to enter FINAL JUDGMENT.

Case: 2:12-cr-00204-PCE-NMK Doc #: 41 Filed: 10/20/14 Page: 2 of 2 PAGEID #: <pageID>