United States District Court, D. New Jersey
Madeline Cox Arleo, District Judge
matter has been opened to the Court by Petitioner Angela de
Jesus-Concepcion's filing of a motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. §
2255. (ECF No. 1.) Respondent, the United States of America,
opposes the motion. (ECF No. 6.) Petitioner also filed a
motion to expedite the Court's decision. (ECF No. 9.) For
the reasons set forth below, Petitioner's § 2255
motion will be denied and a certificate of appealability
shall not issue. Petitioner's motion to expedite will be
dismissed as moot.
direct appeal, the Court of Appeals for the Third Circuit
summarized Petitioner's underlying criminal proceeding as
De Jesus-Concepcion was arrested on March 17, 2012, when she
attempted to reenter the United States through the Newark,
New Jersey, Airport using a false passport in the name of
Isis Carolin Pichardo, a name she also fraudulently signed to
her customs declaration. United States Customs and Border
Protection ("CBP") officers identified de
Jesus-Concepcion for inspection when, as part of routine
screening, they discovered that the passport on which she was
travelling had been issued under two different applications
with pictures of different women. After detaining her, the
officers checked her fingerprints in an immigration database
and confirmed her true identity, which did not match her
passport and customs declaration form.
De Jesus-Concepcion had also obtained a false driver's
license and Certificate of Naturalization with Ms.
Pichardo's information and de Jesus-Concepcion's
photograph. She had used those documents to apply for the
false passport by claiming that her prior passport had been
lost. De Jesus-Concepcion wanted the false documents for
international travel because she was not a U.S. citizen and
was in this country illegally. She had been denied legal
permanent residency, and she had already been ordered to
depart the United States. As early as 1997, she had been
arrested and placed into removal proceedings. Subsequently,
when her application for legal permanent residency was denied
in 2005, the notice informed her that "[i]f you fail to
depart from the United States, proceedings will be instituted
to enforce your departure." (App. 1013.)
An indictment was handed down charging de Jesus-Concepcion
with false representation of U.S. citizenship, in violation
of 18 U.S.C. § 911 (Count One); use of a passport
secured by false statement, in violation of 18 U.S.C. §
1542 (Count Two); and aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1) (Count Three). After a jury
trial, she was convicted of all three counts and sentenced to
36 months' imprisonment and three years' supervised
release. She timely appealed.
United States v. de Jesus-Concepcion, 652 Fed.Appx.
134, 137-38 (3d Cir. 2016). On June 16, 2016, the Third
Circuit denied Petitioner's appeal and affirmed both her
conviction and sentence. See Id. at 142. The United
States Supreme Court denied Petitioner's request for a
writ of certiorari. See de Jesus-Concepcion v. United
States, 137 S.Ct. 519 (2016).
filed the instant § 2255 application on November 15,
2017. (ECF No. 1, at 22-23.) Respondents submitted their
answer opposing the motion. (ECF No. 6.) On June 12, 2019,
Petitioner filed a motion to expedite the Court's
decision. (ECF No. 9.)
motion to vacate, set aside, or correct a sentence of a
person in federal custody, pursuant to 28 U.S.C. § 2255,
provides a prisoner relief if "the sentence was imposed
in violation of the Constitution or laws of the United
States," if "the court was without jurisdiction to
impose such sentence," or if "the sentence was in
excess of the maximum authorized by law, or is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
When considering a § 2255 motion, a district court
"must accept the truth of the movant's factual
allegations unless they are clearly frivolous on the basis of
the existing record." United States v.
Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting
United States v. Booth, 432 F.3d 542, 545 (3d Cir.
2005)). Additionally, a district court must hold an
evidentiary hearing on the motion if "the files and
records do not show conclusively that [the movant] was not
entitled to relief." Id. (quoting Soils v.
United States, 252 F.3d 289, 294 (3d Cir. 2001)
(alteration in original)).