Carrasco v. United States

• Court: District Court, S.D. California
• Decided: February 27, 2023
• Docket: 3:22-cv-00234
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case Nos.: 17CR3938-JLS 22CV0234-JLS 12 Plaintiff/Respondent,

13 ORDER:

14 v. 1) DISMISSING DEFENDANT’S 15 MOTION UNDER 28 U.S.C. § 2255

TO VACATE, SET ASIDE OR 16 GILBERT CARRASCO, CORRECT SENTENCE; 17 2) DENYING DEFENDANT’S Defendant/Petitioner. MOTION TO APPOINT COUNSEL; 18 and 19 3) DENYING CERTIFICATE OF APPEALABILITY 20

21 [ECF Nos. 103 and 109]

22 On February 18, 2022, Defendant Gilbert Carrasco filed a Motion under 28 U.S.C. 23 § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 24 103). On September 6, 2022, Defendant filed a Motion to Appoint Counsel (ECF No. 109). 25 Having considered Defendant’s § 2255 motion and the record in the case, the Court 26 concludes that the motion is time-barred and, therefore, must be dismissed for lack of 27 jurisdiction. For this reason, the Court finds no good cause for the appointment of counsel. 28 1 Background 2 On July 11, 2018, Defendant Carrasco was convicted following a jury trial of 3 possession of methamphetamine with intent to distribute (500 grams and more) in violation 4 of 21 U.S.C. §841(a)(1). Defendant was subsequently sentenced by this Court to the 5 statutory mandatory minimum term of imprisonment of 120 months. ECF 66. An appeal 6 was taken, and the Ninth Circuit Court of Appeals affirmed the conviction in an order 7 issued on May 13, 2020.1 ECF 87. Defendant filed a petition for certiorari which was 8 denied by the Supreme Court on October 5, 2020. Court of Appeals Docket # 18-50417 9 Doc. No. 62. More than 16 months later, on February 18, 2022, Defendant filed the Motion 10 at issue here. 11 Discussion 12 Defendant contends that his conviction should be vacated because he received 13 ineffective assistance of counsel because his conviction was based on perjured testimony, 14 because this Court should have suppressed the fruits of Defendant’s arrest at a Border 15 Patrol checkpoint, and because appellate and trial counsel failed to properly argue these 16 issues. The rulings made by this Court with respect to the substantive issues of the 17 constitutionality of the checkpoint, Defendant’s detention, and the chain of custody of the 18 drug evidence were fully litigated before this Court and on appeal, thus there appears to be 19 no basis for Defendant’s assertions of ineffective assistance of counsel. 20 However, the Court lacks jurisdiction to consider this issue because his motion was 21 filed more than one year after Defendant’s conviction became final2 and is thus untimely 22 23

24 25 1 The Court notes that the issues raised in Defendant’s § 2255 motion are the same as those raised on appeal, with the exception that Defendant now also contends that his trial and appellate counsel were 26 ineffective for failing to properly argue those issues. 2 Defendant’s conviction became final on October 5, 2020, the day the Supreme Court denied 27 certiorari review. See Clay v. United States, 537 U.S. 522, 527 (2003) (recognizing that finality attaches when the Supreme Court “affirms a conviction on the merits on direct review or denies a petition for 28 1 || pursuant to 28 U.S.C. § 2255(f)(1).2. Defendant contends that his motion is timely filed 2 ||“per U.S. Supreme Court extensions due to Covid-19 wor[l]d pandemic,” however 3 || Defendant presents no evidence of such extensions nor authority for this proposition. Nor 4 ||has Defendant presented any specific extraordinary circumstances impeding him from 5 || filing a timely motion. Thus, the Court is unable to conclude that Defendant is entitled to 6 equitable tolling. See, e.g., United States v. Cazarez-Santos, 655 Fed.Appx. 543 (9th Cir. 7 2016) (unpublished) (recognizing that equitable tolling is not applicable absent a showing 8 ||of extraordinary circumstances impeding the filing of a timely petition). Accordingly, 9 || Defendant’s motion must be dismissed as time-barred. 10 Conclusion 11 The Court finds that the record conclusively demonstrates that Defendant is entitled 12 ||to no relief because his motion was not timely filed under 28 U.S.C. §2255(f). 13 || Accordingly, this Court lacks jurisdiction and Defendant’s Motion under 28 U.S.C. § 2255 14 Vacate, Set Aside, or Correct Sentence by Person in Federal Custody is Hereby 15 || Dismissed. IT IS FURTHER ORDERED that Defendant’s Motion to Appoint Counsel is 16 ||Hereby Denied. Additionally, the Court Denies Defendant a certificate of appealability, 17 ||as Defendant has not made a substantial showing that he has been denied a constitutional 18 || right. 19 IT IS SO ORDERED. 20 Dated: February 27, 2023 . tt 21 jen Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28 ° 28 U.S.C. 2255(f)(1) establishes a 1-year period of limitation running from “the date on which the judgment of conviction becomes final.”