1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT CINCINNATI 

UNITED STATES OF AMERICA, 

 Plaintiff, : Case No. 1:18-cr-025 

 Also 1:21-cv-450 

 

 District Judge Susan J. Dlott 

- vs - Magistrate Judge Michael R. Merz 

HUGO ALTUNAR-JIMENEZ, 

 Defendant. : 

 REPORT AND RECOMMENDATIONS 

 This case is before the Court on Defendant Hugo Altunar-Jimenez’s Motion to Vacate 

under 28 U.S.C. § 2255 (ECF No. 84) which has been referred to the undersigned by District Judge 

Susan J. Dlott (ECF No. 85). § 2255 motions are subject to initial screening under Rule 4(b) of 

the Rules Governing § 2255 Motions which provides: 

The judge who receives the motion must promptly examine it. If it 

plainly appears from the motion, any attached exhibits, and the 

record of prior proceedings that the moving party is not entitled to 

relief, the judge must dismiss the motion and direct the clerk to 

notify the moving party. If the motion is not dismissed, the judge 

must order the United States to file an answer, motion, or other 

response within a fixed time, or take other action the judge may 

order. 
2 

Litigation History 

Defendant Altunar-Jimenez was indicted by the grand jury for this District on February 21, 

2018, and charged with conspiracy to distribute heroin and fentanyl (Count One) and possession 

of fentanyl with intent to distribute it (Count Two)(Indictment, ECF No. 13). On January 29, 2019, 

Defendant entered into a Plea Agreement with the United States (ECF No. 35). Its salient terms 

provide: 

¶ 1 Defendant will plead guilty to Count One, the conspiracy 

count. He admits his guilt on that count; 

¶ 10 Defendant waives his right to appeal and his right to 

collaterally attack the judgment under 28 U.S.C. § 2255 except for 

claims of ineffective assistance of trial counsel and prosecutorial 

misconduct; 

¶ 16 “This is the complete agreement between the parties. It 

supersedes all other promises, representations. understandings, and 

agreements between the parties.” 

Id. 

On January 31, 2019, Altunar-Jimenez appeared before Judge Dlott to enter a plea pursuant 

to the Plea Agreement; those proceedings were transcribed for appeal (ECF No. 72). Defendant 

was sworn to tell the truth in that proceeding. Id. at PageID 232. He said he understood the 

applicable prison term on Count One was five to forty years. Id. at PageID 234. He said he 

understood that the Probation Department would prepare a Presentence Investigation Report 

(“PSR”) with a calculated sentencing guidelines range which might be different from any estimate 

his attorney Ravert Clark, had given him. Id. at PageID 239. He said he understood that by 

pleading guilty he was giving up his right to appeal or collaterally attack the judgment and that the 
3 

sentence was entirely at the discretion of the Court. Id. at PageID 240. Judge Dlott read the 

elements of Count One and Altunar-Jimenez agreed he was guilty of all of them. Id. at PageID 

244. Defendant represented to Judge Dlott that the Plea Agreement in fact represented “in its 

entirety any understanding you have with the government” Id. at PageID 250. The following 

exchange then occurred: 

THE COURT: Has anyone made any promise or assurance 

of any kind to persuade you to accept this agreement? 

THE DEFENDANT: No. 

THE COURT: Has anyone made any promise or assurance 

that is not in the plea agreement to persuade you to accept 

this agreement? 

THE DEFENDANT: No, Your Honor. 

Id. He agreed that the Court could impose a more severe sentence than he anticipated. Id. at 

PageID 251-52. Judge Dlott then asked if there were any other promises: 

THE COURT: Aside from the plea agreement we've just discussed, 

has anyone made any promises or assurances of any kind to get you 

to plead guilty? 

THE DEFENDANT: No. 

Id. at PageID 252. Judge Dlott accepted the guilty plea and referred the case for the PSR. After 

considering the PSR, Judge Dlott sentenced Altunar-Jimenez to 135 months imprisonment plus 

four years of supervised release (Judgment, ECF No. 58). 

 Defendant then appealed to the Sixth Circuit Court of Appeals, challenging the substantive 

reasonableness of his sentence and claiming ineffective assistance of trial counsel. The Sixth 

Circuit dismissed the appeal, finding the first claim was barred by Defendant’s appeal waiver and 

the ineffective assistance of trial counsel claim was more properly heard in a § 2255 proceeding 
4 

in this Court. United States v. Altunar-Jimenez, Case No. 19-3826 (6th Cir. Jun. 15, 

2020)(unpublished; copy at ECF No. 76). The instant Motion to Vacate followed within the time 

allowed by law. 

 Defendant claims ineffective assistance of trial counsel generally at the outset of his 

Motion, then sets forth the standard for deciding such a claim under Strickland v. Washington, 466 

U.S. 668 (1984)(Motion, ECF No. 84, PageID 319-20). But then he turns to a discussion of the 

actual innocence doctrine and asserts no rational trier of fact could find a conspiracy existed. Id.

at PageID 321-22. He then raises a Fourth Amendment claim that the search warrant in this case 

failed to make a connection between the address to be searched and the criminal activity set out in 

the supporting affidavit or between the defendant and that address. Id. at PageID 322-28. 

 Altunar-Jimenez fails altogether to allege conduct or omissions by his trial attorney which 

would constitute deficient performance under the first prong of Strickland, much less any facts 

which would indicate prejudice to establish the second prong. The Motion, although it mentions 

ineffective assistance of trial counsel, does not plead a claim for relief under Strickland. 

 Defendant did raise a claim of ineffective assistance of trial counsel on appeal, but does 

not appear to repeat that claim in his § 2255 Motion. The claim as made on appeal was that 

Attorney Clark had promised him a sentence of 108 months. Altunar-Jimenez, supra, at PageID 

292. Some parts of the Motion to Vacate are illegible, so the Magistrate Judge cannot be certain 

Defendant has not somehow adverted to that claim or repeated it here, as the Sixth Circuit invited 

him to do. But assuming that was his intention, the claim is completely refuted by the record. 

While a 108-month sentence would have been possible if Defendant had not received a two-level 

enhancement, with the enhancement the proper Guideline range was 135-168 months. Id. at 

PageID 291. Judge Dlott sentenced Defendant at the very bottom of that range. Altunar-Jimenex 
5 

had sworn in the plea colloquy that no other promises had been made to him by anyone beyond 

what was set forth in the Plea Agreement. He had agreed in that document itself that it constituted 

the entire agreement between the parties. 

A court cannot rely on a defendant’s alleged “subjective impression” “rather than the 

bargain actually outlined in the record,” for to do so would render the plea colloquy process 

meaningless. Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). If the plea colloquy process 

were viewed in this light, any defendant who alleged that he believed the plea bargain was different 

from that outlined in the record would have the option of withdrawing his plea despite his own 

statements during the plea colloquy indicating the opposite. Id.

First Part of the Motion: Insufficient Evidence 

 Defendant’s claim that no rational jury could have found a conspiracy existed, made in the 

context of a discussion of actual innocence, reads as if he were alleging there was insufficient 

evidence to support his conviction. That would indeed be a constitutional violation if he had been 

tried and insufficient evidence was introduced. Jackson v. Virginia, 443 U.S. 307 (1979). But 

Defendant was not tried. Instead, he pleaded guilty and admitted that the conspiracy existed and 

he was part of it. While a claim of insufficient evidence does state a claim which can be considered 

in a § 2255 motion, the Supreme Court has not recognized a free-standing claim of actual 

innocence. Herrera v. Collins, 506 U.S. 390, 408-11 (1993). Thus the first part of Defendant’s 

Motion does not state a claim upon which relief can be granted in a § 2255 proceeding.

 Moreover, any claim there was insufficient evidence to convict is barred by Defendant’s 
6 

waiver of the right to bring a collateral attack on any basis other than ineffective assistance of trial 

counsel or prosecutorial misconduct. 

Second Part of the Motion: Violation of the Fourth Amendment 

In the Second Part of his Motion, Altunar-Jimenez asserts his Fourth Amendment claim 

that the search warrant which produced evidence in this case was not based on probable cause 

because it did not connect the residence to be searched or the Defendant with any of the facts of 

criminal activity set out in the officer’s supporting affidavit (Motion, ECF No. 84, PageID 323). 

 Review of this claim by the Court is barred in several ways. 

 First of all, it is barred by Defendant’s waiver of collateral attack on any basis other than 

ineffective assistance of trial counsel or prosecutorial misconduct. 

 Second, it is barred by Defendant’s guilty plea. A valid, unconditional guilty or no contest 

plea waives all “constitutional violations occurring prior to a plea of guilty once the defendant 

enters his plea,” including a challenge to the evidence supporting a conviction and any pre-plea 

constitutional violations, unless expressly preserved in a plea agreement or at a plea hearing. 

United States v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007); see also Tollett v. Henderson, 411 

U.S. 258, 267 (1973). A guilty or no contest plea renders irrelevant those constitutional violations 

not logically inconsistent with the valid establishment of factual guilt. Menna v. New York, 423 

U.S. 61 (1975). “[A] voluntary and unconditional guilty plea ‘bars any subsequent nonjurisdictional attack on the conviction.’” United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012), 

citing United States v. Martin, 526 F.3d 926, 932 (2008), citing United States v. Pickett, 941 F.2d 

411, 416 (6th Cir. 1991). After entry of an unconditional guilty plea, the defendant may challenge 
7 

only the court’s jurisdiction and the voluntary and intelligent nature of the plea itself. United States 

v. Ferguson, 669 F.3d 756, 763 (6th Cir. 2012), citing United States v. Kirksey, 118 F.3d 1113, 

1115 (6th Cir. 1997). A guilty plea constitutes a break in the chain of events leading up to it. Tollett 

v. Henderson, 411 U.S. 258 (1973). 

 Third, it is barred by the doctrine of Stone v. Powell, 428 U.S. 465 (1976) which prohibits 

federal habeas corpus relief to state prisoners who allege they were convicted on illegally seized 

evidence if they were given a full and fair opportunity to litigate that question in the state courts. 

Altunar-Jimenez could have challenged the search warrant by filing a motion to suppress the 

resulting evidence, but never did so. Stone v. Powell applies to Fourth Amendment claims brought 

in § 2255 motions. Ray v. United States, 721 F.3d 758, 761-762(6th Cir. 2013). 

Conclusion 

 It plainly appears from the Motion and the prior proceedings in this case that Defendant is 

not entitled to relief under § 2255. The Magistrate Judge therefore recommends that the § 2255 

Motion be denied. Because reasonable jurists would not disagree with this conclusion, it is also 

recommended that Petitioner be denied a certificate of appealability and that the Court certify to 

the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to 

proceed in forma pauperis. 

 

July 12, 2021. 

 s/ Michael R. Merz

 United States Magistrate Judge 
8 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Because this document is being served by mail, three days are added under 

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such 

objections shall specify the portions of the Report objected to and shall be accompanied by a 

memorandum of law in support of the objections. A party may respond to another party’s 

objections within fourteen days after being served with a copy thereof. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal.