United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER UNITED STATES DISTRICT JUDGE
Christy Gonsalez-Campos, filed a motion to vacate, set aside,
or correct her sentence under 28 U.S.C. § 2255. Civ.
Docket 1. The matter was assigned to United States
Magistrate Judge Veronica L. Duffy under 28 U.S.C. §
636(b)(1)(B) and this court's October 16, 2014 standing
order. Magistrate Judge Duffy recommends that
Gonsalez-Campos's motion be dismissed. Civ. Docket 29.
Judge Duffy recommends dismissal because Gonsalez-Campos has
not shown ineffective assistance of counsel. Magistrate Judge
Duffy found that pre-plea decisions are not cognizable in a
§ 2255 claim and Gonsalez-Campos has shown no prejudice
as to the plea. Gonsalez-Campos also argues that her attorney
was ineffective for failing to raise pretrial release issues
on her behalf, but Magistrate Judge Duffy found that
Gonsalez-Campos raised those issues several times on her own
behalf and was denied pretrial release because
Gonsalez-Campos was appearing on a writ and was not in
objects to the report and recommendation. Civ. Docket 31. She
claims that she was not aware that the money was related to a
firearm and instead thought it was for the sale of a vacuum
cleaner. As a result, she claims her husband was at fault,
but she was actually innocent. Id. at 2.
Gonsalez-Campos also claims that her husband, David
Gonsalez-Campos, threatened and intimidated her and made her
plead guilty. Id. at 3.
From on or about March 31, 2015, to on or about April 1,
2015, in the District of South Dakota, the Defendant,
Cristina Dawn Griego, a/k/a Cristina Dawn Myers, knowingly
aided and abetted the transfer of a firearm as defined by 26
U.S.C. § 5845(a)(1), namely, a Remington, Model 870
Express Magnum, 20 gauge shotgun, bearing serial number
B868222U, with a barrel less than 18 inches long, which was
not registered to anyone in the National Firearms
Registration and Transfer Record as required by 26 U.S.C.
§ 5841, in violation of 26 U.S.C. §§ 5861(e),
5845(a)(1) and 5871, and 18 U.S.C. § 2.
A co-conspirator of the Defendant offered to sell the
above-described shotgun to a confidential informant (CI) for
$200. On March 31, 2015, the Defendant met with the CI in
Sioux Falls, South Dakota about the purchase of the shotgun,
which the Defendant knew was illegal to possess or sell. The
Defendant told the CI her co-conspirator would not sell the
firearm without another individual involved in the conspiracy
being present. The Defendant assisted in making arrangements
for the sale to be completed.
On April 1, 2015, after the firearm was sold to the CI, a
controlled payoff was executed where the CI gave the
Defendant and another co-conspirator money for the firearm.
CR Docket 97. This factual basis statement was verified by
Gonsalez-Campos as being true during the change of plea
hearing and it was supplemented with additional facts. CR
Docket 146 at 15. Thus, Gonsalez-Campos admitted during the
change of plea hearing that she knew the transaction was
about the sale of an illegal firearm and not the sale of a
regard to the voluntariness issue, during the change of plea
hearing, the court asked Gonsalez-Campos whether anyone had
attempted “in any way to force you to plead guilty
today?” CR Docket 146 at 10. Gonsalez-Campos's
response was “no, ma'am.” Id. The
court asked her if she was “pleading guilty of her own
free will because [she believed she was] guilty?”
Id. Gonsalez-Campos replied, “yes,
ma'am.” Id. Because Gonsalez-Campos
testified under oath at her plea hearing that she committed
the firearm offense and that she was pleading guilty of her
own free will without threats or coercion, the plea was not
involuntary. See, e.g., United States v.
Gray, 152 F.3d 816, 820 (8th Cir. 1998).
considering Gonsalez-Campos's objections to the report
and recommendation, the court overrules the objections and
adopts in full the report and recommendation of Magistrate
denial of a § 2255 motion may be appealed, a movant must
first obtain a certificate of appealability from the district
court. Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003). A certificate may be issued “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A
“substantial showing” is one that demonstrates
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The court finds that Gonsalez-Campos has not made a
substantial showing that the district court's assessments
of her claims are debatable or wrong. Consequently, a
certificate of appealability is not issued.
it is ORDERED
Gonsalez-Campos's objections to the report and
recommendation (Civ. Docket 31) are overruled.
report and recommendation (Civ. Docket 29) is adopted in
full. Gonsalez-Campos's motion to vacate, set aside, or
correct her sentence under 28 ...