Leyva v. United States

• Court: District Court, S.D. California
• Decided: January 13, 2023
• Docket: 3:20-cv-00096
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGIO LEYVA, Case Nos.: 15CR3033-JLS 20CV0096-JLS 12 Petitioner,

13 v. ORDER DISMISSING PETITIONER’S MOTION UNDER 28 14 DIANE BARRIOS, FIELD OFFICE U.S.C. § 2255 TO VACATE, SET DIRECTOR U.S. DEPARTMENT OF 15 ASIDE OR CORRECT SENTENCE HOMELAND SECURITY U.S. and DENYING CERTIFICATE OF 16 IMMIGRATION AND CUSTOMS APPEALABILITY ENFORCEMENT, 17 Respondent. 18 19 20 21 On January 10, 2020, Petitioner Sergio Leyva filed a Petition for Writ of Habeas 22 Corpus under 28 U.S.C. § 2241. Because the Petition alleges an invalid conviction, this 23 Court dismissed the Petition under 28 U.S.C. § 2241 as improperly pled and directed that 24 the Petition be filed as a Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct 25 Sentence by Person in Federal Custody.1 Having now considered the Petition as so 26

27 1 It is not clear from the Petition what Petitioner’s custodial status is. The Petition indicates that 28 1 construed, the Court concludes that the Petition is time-barred and, therefore, must be 2 dismissed for lack of jurisdiction. 3 Background 4 On January 12, 2016, Petitioner Leyva entered a plea agreement and pled guilty to 5 the offense of Transportation of Certain Aliens for Financial Gain in violation of 8 U.S.C. 6 §§ 1324 (a) (1) (A) (ii), (v) (II) and (a) (1) (B) (i). He was sentenced by this Court on 7 March 11, 2016 to a term of imprisonment of 10 months and 3 years of supervised released. 8 Defendant did not file an appeal, thus his conviction became final 14 days later, on March 9 26, 2016. See United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (recognizing 10 that statute of limitations for § 2255 motion began to run upon the expiration of the time 11 during which the defendant could have sought review by direct appeal). More than three 12 years later, on January 10, 2020, Petitioner filed the Petition at issue here. 13 Discussion 14 Petitioner contends that his conviction should be vacated because he received 15 ineffective assistance of counsel prior to entering his guilty plea. He indicates that his 16 counsel did not advise him of the immigration consequences of his guilty plea, including 17 his loss of status as a legal permanent resident, the fact that he is barred from seeking 18 immigration relief, or the fact that mandatory deportation would result. 19 Because the Petition was filed more than one year after Petitioner’s conviction 20 became final, it is untimely pursuant to 28 U.S.C. § 2255(f)(1). Petitioner contends that he 21 is entitled to equitable tolling because the basis for his claim for relief, alleged ineffective 22 assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010),2 was not known until 23 he was placed in immigration removal proceedings on September 9, 2016. However, even 24

25 26 Immigration Judge on March 16, 2018. Thus, it appears that the Petition may be deficient because Petitioner is not “in custody.” However, resolution of this issue is not necessary to the determination of 27 this motion. 2 In Padilla the Supreme Court recognized that failure to advise a defendant that a plea of guilty 28 1 || accepting Petitioner’s allegations as true, the Petition, filed on January 10, 2020, was still 2 || filed more than one year after “the date on which the facts supporting the claim or claims 3 || presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 4 ||2255(f)(4). Petitioner alleges no extraordinary circumstances impeding him from filing a 5 || timely petition after he was placed in removal proceedings in 2016. Therefore, Petitioner 6 not entitled to equitable tolling. See, e.g., United States v. Cazarez-Santos, 655 7 || Appx. 543 (9th Cir. 2016) (unpublished) (recognizing that § 2255 statute of limitations 8 ||began running, at the latest, when the petitioner was served with a notice to appear for 9 ||immigration removal proceedings and that equitable tolling was not applicable absent a 10 || showing of extraordinary circumstances impeding the filing of a timely petition). 11 Conclusion 12 The Court finds that the Petition and the record conclusively demonstrate that 13 || Petitioner is entitled to no relief because the Petition was not timely filed under 28 U.S.C. 14 }}§2255(f). Accordingly, this Court lacks jurisdiction and Petitioner’s Petition under 28 15 || U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody is 16 ||Hereby Dismissed. Additionally, the Court Denies Defendant a certificate of 17 || appealability, as Defendant has not made a substantial showing that he has been denied a 18 || constitutional right. 19 IT IS SO ORDERED. 20 ||Dated: January 13, 2023 . tt 21 jen Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28