1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERTO FLORES-RAMIREZ, Civil Case No.: 16cv1427-JAH Criminal Case No.: 14cr415-JAH 12 Petitioner, 13 v. ORDER DENYING AS MOOT PETITIONER’S MOTION TO 14 UNITED STATES OF AMERICA, VACATE CONVICTION AND 15 Respondent. SENTENCE PURSUANT TO 28 U.S.C. § 2255 16 17 18 INTRODUCTION 19 This matter comes before the Court on Petitioner Roberto Flores-Ramirez’s 20 (“Petitioner”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 21 2255. See Doc. No. 25. Respondent United States of America filed a Response in 22 Opposition to Petitioner’s motion. Doc. No. 27. Under Rule 4 of the Rules Governing § 23 2255 Proceedings, this Court may dismiss a § 2255 motion if it “plainly appears” from the 24 motion, attached exhibits, and the record of prior proceedings, that petitioner is not entitled 25 to relief. See Rule 4 of the Rules Governing § 2255 Proceedings; see also United States v. 26 Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). Having thoroughly considered the parties’ 27 briefing, the relevant record, and, in accordance with Rule 4, the Court DENIES as moot 28 Petitioner’s motion. 1 BACKGROUND 2 On April 25, 2014, Petitioner, with the advice and consent of counsel, signed a plea 3 agreement, admitting that he unlawfully re-entered the United States in violation of 8 4 U.S.C. § 1326. See Doc. No. 9. Specifically, Petitioner admitted as “true and undisputed” 5 that on or about September 21, 2013, Petitioner was previously excluded, deported, and 6 removed from the United States to Mexico and then was subsequently found in the United 7 States. See id. 8 On May 6, 2014, a change of plea hearing was held before Magistrate Judge Nita L. 9 Stormes. See Doc. Nos. 6, 11. The magistrate judge also determined that Petitioner’s guilty 10 plea was made knowingly and voluntarily, and did not result from force, threats, or 11 promises. Doc. No. 10. On July 25, 2014, Petitioner was sentenced to 27-months in custody 12 followed by two years of supervised release. See Doc. No. 17. Judgment was entered on 13 July 29, 2014. See Doc. No. 18. 14 Then, on December 3, 2015, Petitioner, proceeding pro se, filed a habeas motion 15 with the Ninth Circuit on the grounds of newly discovered evidence. Doc. No. 19. On 16 January 6, 2016, the Ninth Circuit determined his appeal was untimely and dismissed 17 Petitioner’s case without prejudice. See Doc. Nos. 22, 23, 24. On June 6, 2016, Petitioner, 18 proceeding pro se, filed his motion to vacate, set aside, or correct his sentence pursuant to 19 28 U.S.C. § 2255 with the Court. See Doc. No 25. Respondent United States of America 20 (“Respondent”) filed a response in opposition on January 9, 2017. See Doc. No. 27. 21 DISCUSSION 22 1. Legal Standard 23 Under 28 U.S.C. § 2255, a federal prisoner may move the court to vacate, set aside, 24 or correct his sentence on the ground that: (1) the sentence was imposed in violation of the 25 Constitution or laws of the United States; (2) the court was without jurisdiction to impose 26 such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) 27 the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a); United States v. 28 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). 1 2. Analysis 2 As a threshold matter, the Court is aware that Petitioner was released from Bureau 3 of Prisons custody on June 2, 2017.1 Accordingly, Petitioner’s motion to vacate, set aside, 4 or correct his sentence must be DENIED AS MOOT. United States v. Kramer, 195 F.3d 5 1129 (9th Cir. 1999) (“[A] defendant seeking relief under 28 U.S.C. § 2255 . . . must be 6 in custody, [and] . . . claim the right to be released from custody.”). Nevertheless, even if 7 petitioner was still in custody, this Court would DENY his claim for relief. 8 Petitioner claims that he is entitled to relief based upon the Supreme Court’s decision 9 in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 10 1257 (2016). 11 a. Waiver 12 Respondent contends the motion should be dismissed because Petitioner waived his 13 right to collaterally attack his sentence. Petitioner waived his right to appeal or collaterally 14 attack his sentence as part of his plea agreement. Doc. No. 9. A knowing and voluntary 15 waiver of a statutory right is enforceable. United States v. Navarro-Botello, 912 F.2d 318, 16 321 (9th Cir. 1990). The right to collaterally attack a sentence pursuant to 28 U.S.C. § 2255 17 is statutory in nature, and a defendant may therefore waive the right to file a § 2255 petition. 18 See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering 19 plea agreement whereby defendant waived right to appeal his sentence, defendant 20 relinquished right to directly or collaterally attack his sentence on the ground of newly 21 discovered exculpatory evidence). The scope of a section 2255 waiver may be subject to 22 potential limitations, however, none of those limitations apply to the instant matter. See 23 Navarro-Botello, 912 F.2d at 321 (a defendant’s waiver will not bar an appeal if the trial 24 court did not satisfy certain requirements under Federal Rule of Criminal Procedure 11 to 25 ensure that the waiver was knowingly and voluntarily made); United States v. Littlefield, 26
27 1 According to the Bureau of Prisons Inmate Locater, 28 1 105 F.3d 527, 528 (9th Cir. 1997) (a waiver might also be ineffective where the sentence 2 imposed is not in accordance with the negotiated agreement); United States v. Pruitt, 32 3 F.3d 431, 433 (9th Cir. 1994) (a waiver may be “unenforceable” and may not “categorically 4 foreclose” a defendant from bringing section 2255 proceedings where a petitioner claims 5 ineffective assistance of counsel challenging the voluntariness of his plea.). 6 b. Procedural Default 7 Respondent argues Petitioner procedurally defaulted his challenge because he failed 8 to file a timely appeal. A federal prisoner who fails to raise a claim on direct appeal 9 procedurally defaults the claim and must demonstrate cause and prejudice or actual 10 innocence to obtain relief under section 2255. Bousley v. United States, 523 U.S. 614, 622 11 (1998). Respondent contends Petitioner cannot establish cause or prejudice to overcome 12 the bar. As discussed above, Petitioner’s direct appeal was based on newly discovered 13 evidence.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERTO FLORES-RAMIREZ, Civil Case No.: 16cv1427-JAH Criminal Case No.: 14cr415-JAH 12 Petitioner, 13 v. ORDER DENYING AS MOOT PETITIONER’S MOTION TO 14 UNITED STATES OF AMERICA, VACATE CONVICTION AND 15 Respondent. SENTENCE PURSUANT TO 28 U.S.C. § 2255 16 17 18 INTRODUCTION 19 This matter comes before the Court on Petitioner Roberto Flores-Ramirez’s 20 (“Petitioner”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 21 2255. See Doc. No. 25. Respondent United States of America filed a Response in 22 Opposition to Petitioner’s motion. Doc. No. 27. Under Rule 4 of the Rules Governing § 23 2255 Proceedings, this Court may dismiss a § 2255 motion if it “plainly appears” from the 24 motion, attached exhibits, and the record of prior proceedings, that petitioner is not entitled 25 to relief. See Rule 4 of the Rules Governing § 2255 Proceedings; see also United States v. 26 Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). Having thoroughly considered the parties’ 27 briefing, the relevant record, and, in accordance with Rule 4, the Court DENIES as moot 28 Petitioner’s motion. 1 BACKGROUND 2 On April 25, 2014, Petitioner, with the advice and consent of counsel, signed a plea 3 agreement, admitting that he unlawfully re-entered the United States in violation of 8 4 U.S.C. § 1326. See Doc. No. 9. Specifically, Petitioner admitted as “true and undisputed” 5 that on or about September 21, 2013, Petitioner was previously excluded, deported, and 6 removed from the United States to Mexico and then was subsequently found in the United 7 States. See id. 8 On May 6, 2014, a change of plea hearing was held before Magistrate Judge Nita L. 9 Stormes. See Doc. Nos. 6, 11. The magistrate judge also determined that Petitioner’s guilty 10 plea was made knowingly and voluntarily, and did not result from force, threats, or 11 promises. Doc. No. 10. On July 25, 2014, Petitioner was sentenced to 27-months in custody 12 followed by two years of supervised release. See Doc. No. 17. Judgment was entered on 13 July 29, 2014. See Doc. No. 18. 14 Then, on December 3, 2015, Petitioner, proceeding pro se, filed a habeas motion 15 with the Ninth Circuit on the grounds of newly discovered evidence. Doc. No. 19. On 16 January 6, 2016, the Ninth Circuit determined his appeal was untimely and dismissed 17 Petitioner’s case without prejudice. See Doc. Nos. 22, 23, 24. On June 6, 2016, Petitioner, 18 proceeding pro se, filed his motion to vacate, set aside, or correct his sentence pursuant to 19 28 U.S.C. § 2255 with the Court. See Doc. No 25. Respondent United States of America 20 (“Respondent”) filed a response in opposition on January 9, 2017. See Doc. No. 27. 21 DISCUSSION 22 1. Legal Standard 23 Under 28 U.S.C. § 2255, a federal prisoner may move the court to vacate, set aside, 24 or correct his sentence on the ground that: (1) the sentence was imposed in violation of the 25 Constitution or laws of the United States; (2) the court was without jurisdiction to impose 26 such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) 27 the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a); United States v. 28 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). 1 2. Analysis 2 As a threshold matter, the Court is aware that Petitioner was released from Bureau 3 of Prisons custody on June 2, 2017.1 Accordingly, Petitioner’s motion to vacate, set aside, 4 or correct his sentence must be DENIED AS MOOT. United States v. Kramer, 195 F.3d 5 1129 (9th Cir. 1999) (“[A] defendant seeking relief under 28 U.S.C. § 2255 . . . must be 6 in custody, [and] . . . claim the right to be released from custody.”). Nevertheless, even if 7 petitioner was still in custody, this Court would DENY his claim for relief. 8 Petitioner claims that he is entitled to relief based upon the Supreme Court’s decision 9 in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 10 1257 (2016). 11 a. Waiver 12 Respondent contends the motion should be dismissed because Petitioner waived his 13 right to collaterally attack his sentence. Petitioner waived his right to appeal or collaterally 14 attack his sentence as part of his plea agreement. Doc. No. 9. A knowing and voluntary 15 waiver of a statutory right is enforceable. United States v. Navarro-Botello, 912 F.2d 318, 16 321 (9th Cir. 1990). The right to collaterally attack a sentence pursuant to 28 U.S.C. § 2255 17 is statutory in nature, and a defendant may therefore waive the right to file a § 2255 petition. 18 See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering 19 plea agreement whereby defendant waived right to appeal his sentence, defendant 20 relinquished right to directly or collaterally attack his sentence on the ground of newly 21 discovered exculpatory evidence). The scope of a section 2255 waiver may be subject to 22 potential limitations, however, none of those limitations apply to the instant matter. See 23 Navarro-Botello, 912 F.2d at 321 (a defendant’s waiver will not bar an appeal if the trial 24 court did not satisfy certain requirements under Federal Rule of Criminal Procedure 11 to 25 ensure that the waiver was knowingly and voluntarily made); United States v. Littlefield, 26
27 1 According to the Bureau of Prisons Inmate Locater, 28 1 105 F.3d 527, 528 (9th Cir. 1997) (a waiver might also be ineffective where the sentence 2 imposed is not in accordance with the negotiated agreement); United States v. Pruitt, 32 3 F.3d 431, 433 (9th Cir. 1994) (a waiver may be “unenforceable” and may not “categorically 4 foreclose” a defendant from bringing section 2255 proceedings where a petitioner claims 5 ineffective assistance of counsel challenging the voluntariness of his plea.). 6 b. Procedural Default 7 Respondent argues Petitioner procedurally defaulted his challenge because he failed 8 to file a timely appeal. A federal prisoner who fails to raise a claim on direct appeal 9 procedurally defaults the claim and must demonstrate cause and prejudice or actual 10 innocence to obtain relief under section 2255. Bousley v. United States, 523 U.S. 614, 622 11 (1998). Respondent contends Petitioner cannot establish cause or prejudice to overcome 12 the bar. As discussed above, Petitioner’s direct appeal was based on newly discovered 13 evidence. The Court finds there is neither cause or prejudice that would overcome the 14 procedural default, as Petitioner’s claim is not novel nor is there any indication of 15 prejudice. See Reed v. Ross, 468 U.S. 1, 16 (1984) (a petitioner may demonstrate cause if 16 his “constitutional claim is so novel that its legal basis is not reasonably available to 17 counsel.”); see also Molina-Martinez v. United States, 136 S. Ct. 1338, 1346-47 (2016) (an 18 application of an incorrect Guidelines range and sentencing affects a defendant’s 19 substantial rights.) 20 c. Johnson and its Progeny 21 The Court in Johnson, 135 S. Ct. at 2563, held unconstitutionally vague the residual 22 clause of the Armed Career Criminals Act (“ACCA”), which defined a “violent felony” as 23 any felony that “involves conduct that presents a serious potential risk of physical injury 24 to another[.]” 18 U.S.C. § 924(e)(2)(B). The Court later determined the decision in Johnson 25 was substantive and has retroactive effect on collateral review in Welch. 26 Here, Petitioner is challenging the eight-point enhancement he received based on a 27 prior conviction for violating California Penal Code § 459. Doc. No. 16. However, 28 Petitioner’s sentence enhancement was not prescribed by the residual clause, rather was 1 || prescribed by the United States Sentencing Guidelines § 2L1.2(b)(C). Doc. No. 14. In light 2 this, the holding in Johnson does not apply to the instant matter. See United States v. 3 || Hermoso-Garcia, 413 F.3d 1085 (2005); see also Ezell v. United States, 743 Fed.Appx. 4 (9th Cir. 2018) (“Tf the sentencing record makes clear that the district court did not rely 5 the residual clause to find that a prior offense qualified as a predicate offense under the 6 || Armed Career Criminal Act, the petition does not rely on Johnson as to that offense.’’). 7 d. Time-Barred 8 Finally, the instant petition is time barred, as Petitioner did not bring the motion 9 || within the statutory one-year limit, as prescribed by 28 U.S.C. 2255(f). 10 CONCLUSION AND ORDER 11 Based on the foregoing, IT IS HEREBY ORDERED that Petitioner’s motion to 12 || vacate, set aside, or correct his sentence, [doc. no. 25], is DENIED AS MOOT. 13 14 15 16 17 |} DATED: December 2, 2019 18 19 J@HN A. HOUSTON 20 nited States District Judge 21 22 23 24 25 26 27 28