raising them in a section 2255 proceeding unless he or she makes a showing of good cause
for and prejudice from that failure.” Jd. (emphasis added). To demonstrate good cause, the
petitioner must show “some objective factor external to the defense” that impeded his efforts
to raise the issue. Coleman v. Thompson, 501 U.S. 722, 753 (1993).

Defendant appealed his sentence and did not raise the issue of the deportation judge’s
failure to advise him of his right to seek a waiver of deportation. Accordingly, he is
procedurally barred from raising the issue in this petition unless he establishes good cause
and prejudice for the default.

Defendant has made no attempt to show cause for his failure to raise the issue he
argues here on direct appeal. In his petition, defendant explains at length why he did not
appeal his 1996 deportation order at that time. (Pet. Vacate Sentence, at 10-14.) However,
he offers absolutely no explanation whatsoever of why he did not raise the issue of the
unconstitutionality of the immigration judge’s failure to advise him of his waiver right when
he appealed his sentence directly in United States v. Rafaela-Morales, 2002 WL 378177, at
*1-2. Defendant’s failure to attempt to argue good cause is sufficient to deny his petition.
See Theodorou, 887 F.2d at 1341 (7th Cir. 1989) (rejecting defendant’s explanation of why
he did not raise issue on direct appeal and holding that he could not raise issue in his section
2255 petition because he offered “no plausible explanation constituting good cause why this
. .. issue was not pursued in a proper procedural manner”).

Moreover, this Court doubts that defendant would even be able to establish good
cause for the default. The Sz. Cyr decision was decided on June 25, 2001, and would have
been available to the defendant’s attorney when he filed his appellate brief seven months
later on January 11, 2002 and to defendant when he was invited by the appellate court to

4


inherently results in a complete miscarriage of justice.”” Borre v. United States, 940 F.2d
215, 217 (7th Cir. 1991). Denial ofa section 2255 petition without an evidentiary hearing
is proper where “the motion and the files and records of the case conclusively demonstrate
that the prisoner is entitled to no relief... .” 28 U.S.C. § 2255.

In support of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255,
defendant argues that his original 1996 deportation hearing violated the due process
guarantees of the U.S. Constitution. Defendant argues that the immigration judge did not
inform him of his right to seek a waiver of his deportation because the judge was operating
under a false interpretation of the law. (Pet’r’s Mot. Vacate Sentence, at 4.)

The government urges the Court to deny the petition. It argues that defendant is
procedurally barred from raising this issue in a section 2255 petition because he did not raise
the issue on direct appeal, or, alternatively that his argument fails on the merits because he
did not have any right to waiver of his deportation order because he was never a legal
resident of the United States. (Resp’t’s Resp. Pet’r’s Mot. Vacate Sentence. at 4.) Because
the Court finds that Rafaela-Morales is procedurally barred from raising the issues in his
petition, the Court need not address the merits of his argument.

“[A] petition under section 2255 ‘will not be allowed to do service for an appeal,”
and “a district court cannot reach the merits of an appealable issue in a section 2255
proceeding unless that issue has been raised in a procedurally appropriate manner.”
Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989) (quoting Johnson v. United
States, 838 F.2d 201, 202 (7th Cir, 1988)). A claim of error raised in a section 2255 petition
usually must first be argued on direct appeal. Borre, 940 F.2d at 217. When the issues

involve constitutional error, “the failure to raise issues on direct appeal bars a petitioner from

3


respond to his attorney’s motion to withdraw. Thus, Rafaela-Morales cannot argue a
subsequent development of the law since his appeal.

In addition, Rafaela-Morales is not arguing and has never argued that his appellate
counsel provided ineffective assistance of counsel. Although the United States Court of
Appeals for the Seventh Circuit invited Rafaela-Morales to respond to his appellate
counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), he
chose not to do so. See Oliver v. United States, 961 F.2d 1339, 1342 (7th Cir, 1992) (“A
defendant must take an interest in his own defense.”) Further, nowhere in his section 2255
petition does he argue that his appellate counsel’s failure to raise the issue that his
deportation was fundamentally unfair and therefore could not serve as a predicate for a
conviction of illegal re-entry constitutes ineffective assistance of counsel. Accordingly,
because Rafaela-Morales has not established good cause for failing to raise the issues he

raises here on direct appeal, his petition must be denied. See id. at 1341.

CONCLUSION
For the foregoing reasons, the Court denies petitioner’s Motion to Vacate
Sentence Pursuant to 28 U.S.C. § 2255 [doc. no. 1-1]. This case is hereby terminated.

SO ORDERED ENTERED: 7/3//03

HON. RONALD A. GUZ}
United States Judge


Minute Order Form (06/97)

United States District Court, Northern District of [linois

Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 4647 - (O0CR 989-1) DATE 7/31/2003
CASE USA vs. FRANCISCO RAFAELA-MORALES
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.}

a1)

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oO Answer brief to motiondue__. Reply to answer briefdue___.

(4) ii] Ruling/Hearingon____sset for_____ at

(5) Qa Status hearing[held/continued to] [set for/re-set for]on___setfor___at.

(6) o Pretrial conference[held/continued to] [set for/re-set for]on___—_setfor_ at

(7) go Trial{set for/re-set for]on__—__at

(8) QO [Bencl/Jury trial] [Hearing] held/continued to__at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OC Local Rule 41.1 COFRCP41(a)(1) 0 FRCP41(a)(2).

(0) « [Other docket entry] © ENTER MEMORANDUM OPINION AND ORDER: _ the Court denies

petitioner’s Motion to Vacate Sentence pursuant to 28 U.S.C. Section 2255 [1-1]. This case is hereby

terminated.

| [For further detail sce order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

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Notified counsel by telephone.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, } .
Vv. } Judge Ronald A. Guzman
FRANCISCO RAFAELA-MORALES, ; 02 C 4647 (00 CR 989-1) Aug 0
Defendant. ,

MEMORANDUM OPINION AND ORDER

Defendant pleaded guilty to illegal reentry into the United States, 8 U.S.C. §
1326, and was sentenced to fifty-one months of imprisonment. He now moves to vacate
his sentence under 28 U.S.C. § 2255 and argues that the deportation element of his crime
was not fulfilled because the deportation hearing establishing that element deprived him
of his constitutional right to due process. For the reasons provided below, the Court
denies defendant’s petition because he failed to raise this issue on direct appeal and is

thereby procedurally barred from raising it collaterally here.

FACTS
After pleading guilty to illegal reentry into the United States under 8 U.S.C. § 1326!
pursuant to a plea agreement with the government, the Court sentenced defendant to fifty-

one months imprisonment. (Sentencing Order of 7/9/01.)

18 U.S.C. § 1326 prohibits an alien from reentering the United States if he has
been deported. The penalties under the statute are much greater if the defendant’s
removal was subsequent to his commission of certain classes of crimes, such as an
aggravated felony. 8 U.S.C. § 1326(b).



Defendant’s original deportation fulfilling the deportation element of § 1326
occurred on September 12, 1996 after a deportation hearing. (Pet’r’s Mot. Vacate Sentence,
at 2.) He was deported based on his conviction for aggravated battery on August 23, 1994
in Cook County, Illinois. (Resp’t’s Resp. Pet’r’s Mot. Vacate Sentence, at 1.) He reentered
this country from Mexico again in 1996, shortly after his deportation. In 1999, he was
arrested by the Chicago Police and charged with robbery. (/d.) He was then deported again
under the 1996 deportation order. (/d.) Defendant reentered the United States in 2000. (/d.)
On November 28, 2000 the Chicago Police Department arrested him, and he was charged
with possession of a controlled substance. (Jd. at 3.) The United States charged him by
information under 8 U.S.C. § 1326(a) and (b)(2) with unauthorized reentry into the United
States after having been deported due to a conviction for an aggravated felony. (Id.)
Defendant pleaded guilty to this charge. (Jd.) This Court sentenced him to fifty-one months
of imprisonment.

Defendant subsequently appealed his sentence. His appellate counsel moved to
withdraw, claiming that he could find no nonfrivolous ground for appeal. United States v.
Rafaela-Morales, No. 01-2907, 2002 WL 378177, at *1 (7th Cir. Mar. 7, 2002). The court
gave defendant leave to respond to his counsel’s motion, but defendant declined. Jd. The
court agreed that any ground for appeal would be frivolous, granted counsel’s motion to

withdraw and dismissed the appeal. Id.

DISCUSSION
28 U.S.C. § 2255 allows a person convicted of a crime to ask for relief for “‘an error

of law that is jurisdictional, constitutional, or constitutes a ‘fundamental defect which

2