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De Jesus-Concepcion v. United States

United States District Court, D. New Jersey

August 30, 2019

ANGELA DE JESUS-CONCEPCION, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          Madeline Cox Arleo, District Judge

         I. INTRODUCTION

         This 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.

         II. FACTUAL BACKGROUND

         On direct appeal, the Court of Appeals for the Third Circuit summarized Petitioner's underlying criminal proceeding as follows:

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).

         Petitioner 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.)

         III. LEGAL STANDARD

         A 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)).

         IV. ANALYSIS

         a. Ineffective ...


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