Cuero-Candelo v. United States

• Court: District Court, S.D. California
• Decided: July 28, 2022
• Docket: 3:19-cv-01081
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, Case Nos.: 17CR1655-JLS 19CV1081-JLS 10 Plaintiff,

11 ORDER:

12 1) DISMISSING DEFENDANT’S 13 MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR 14 CORRECT SENTENCE; v. 15 2) DENYING CERTIFICATE OF 16 APPEALABILITY; 17 3) DENYING APPLICATION FOR 18 DOWNWARD VARIANCE; and 19 4) DENYING FEDERAL 20 JOSE CUERO-CANDELO (1), DEFENDERS OF SAN DIEGO’S 21 Defendant. REQUEST FOR APPOINTMENT OF COUNSEL AND MOTION TO 22 VACATE ORDER PERMITTING 23 DECLARATIONS FROM COUNSEL

24 [ECF Nos. 98, 100, and 111] 25 26 On June 7, 2019, Defendant Cuero-Candelo, proceeding pro se, filed a Motion under 27 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody 28 (ECF No. 98). On June 12, 2019, Defendant filed an application for downward variance 1 seeking a reduction in his sentence pursuant to United States Sentencing Guideline 2 (“USSG”) Section 5K1.1 (ECF No. 100). On Plaintiff’s motion, the Court subsequently 3 issued an order requiring Defendant to confirm that he wished to proceed with his Section 4 2255 motion with the understanding that his attorney-client privilege would be deemed 5 waived with respect to the issues raised in the motion (ECF No. 108). Defendant responded 6 that he wished to proceed with the motion (ECF No. 110), and the Federal Defenders of 7 San Diego filed a request for appointment of counsel and motion to vacate the order 8 permitting declarations from counsel (ECF No. 111). Plaintiff filed a response in 9 opposition to Defendant’s 2255 Motion (ECF No. 112), however, no declaration from 10 former counsel was submitted. 11 Defendant’s Section 2255 motion was filed more than one year after his conviction 12 became final1 and is therefore untimely pursuant to 28 U.S.C. § 2255(f)(1).2 Defendant 13 has presented no reason why his claims could not have been timely filed, nor do any of the 14 exceptions to the 1-year statute of limitations appear to be applicable. Defendant has not 15 alleged any impediment to making a motion; there has been no right newly recognized by 16 the Supreme Court; and the facts supporting the claim were present or could have been 17 discovered through the exercise of due diligence on the date of sentencing. See 28 U.S.C. 18 § 2255(f)(2)-(5). Thus, Defendant’s motion will be dismissed as time barred. 19 Turning to Defendant’s application for a downward variance, Defendant presents no 20 authority that would permit the Court to grant a sentencing departure after his sentence has 21 become final. Moreover, as Defendant acknowledges, a departure under USSG § 5K1.1 22 may only be granted upon motion of the government. 23 24 25 1 Defendant was sentenced on March 2, 2018 and he filed no notice of appeal. Thus, his conviction 26 became final 14 days later. See United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (recognizing that statute of limitations for § 2255 motion began to run upon the expiration of the time 27 during which the defendant could have sought review by direct appeal). 2 28 U.S.C. 2255(f)(1) establishes a 1-year period of limitation running from “the date on which the 28 1 For the reasons set forth above, Defendant’s Motion under 28 U.S.C. § 2255 to 2 || Vacate, Set Aside, or Correct Sentence by Person in Federal Custody is Hereby Dismissed. 3 || Additionally, the Court Denies Defendant a certificate of appealability, as Defendant has 4 ||not made a substantial showing that he has been denied a constitutional right. Defendant’s 5 || Application for a Downward Variance is Denied. Finally, the Federal Defenders of San 6 || Diego’s Request for Appointment of Counsel and Motion To Vacate Order Permitting 7 || Declarations From Counsel is Denied as Moot. 8 IT IS SO ORDERED. 9 ||Dated: July 28, 2022 . tt f Le 10 on. Janis L. Sammartino United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28