1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN LESLIE ROE, Case Nos.: 19-cv-00029; 18-cr-1887
12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE 14 UNITED STATES OF AMERICA, PURSUANT TO 28 U.S.C. § 2255 15 Respondent. 16
17 Pending before the Court is Petitioner Steven Leslie Roe’s motion to vacate, set aside 18 or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 44.) As explained in greater 19 detail below, the Court DENIES Petitioner’s motion to vacate. 20 BACKGROUND 21 On April 26, 2018, Petitioner pled guilty to bringing in unlawful alien(s) into the 22 United States without permission in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). (Doc. No. 23 31.) Petitioner was sentenced to fifteen (15) months in custody and three (3) years of 24 supervised release. (Doc. No. 42 at 2–3.) 25 The facts leading up to Petitioner’s guilty plea are as follows. On March 13, 2018, 26 Petitioner entered the United States from Mexico through the San Ysidro Port of Entry. 27 (Doc. No. 35 at 3.) At secondary inspection, officers discovered an individual hiding inside 28 a wooden shelf pressed against the seats of the car. (Id.) The individual was an illegal alien. 1 (Id.) Petitioner had been previously convicted for similar conduct in 2016 and violated the 2 terms of his supervised release for the prior conviction. (Doc. No. 36 at 2.) 3 Petitioner filed a Sentencing Memorandum prior to sentencing where counsel 4 explained: 5 Clearly Mr. Roe struggled to reintegrate into the community after his 2016 conviction for similar conduct. He responded well to 6 supervision and was placed on the administrative caseload; 7 however, he was simply unable afford the necessities like food and shelter. He lost the apartment that he had been living in and 8 could not rent a comparable place. He did not know where to 9 turn. 10 (Id.) Further, at Petitioner’s sentencing hearing on August 20, 2018, counsel further 11 explained, “[m]ost recently, before this offense, his rent had gone up from $1,325 a month 12 to $1,800 a month. His girlfriend left him. In essence, all his resources dried up. He was 13 living in his car.” (Doc. No. 50-1, Ex. 1 at 4.) 14 At Petitioner’s sentencing hearing, Petitioner made a statement regarding his 15 attorney’s conduct stating, “I think Mr. Johnson has laid it out pretty well. I was in a 16 desperate situation. I’m sorry about that, but Mr. Johnson has done a very good job for 17 me.” (Id. at 6.) 18 The Court sentenced Petitioner to 15 months in custody and noted: 19 I gave you a time-served sentence last time, hoping that your age would work against recidivism, and the unfortunate 20 circumstances with supervision would keep you moving 21 forward, not stepping back. And it didn’t. Here we are, two years later, going through a similar situation, another alien smuggling 22 case, another set of circumstances involving substantial risk. And 23 it’s just not acceptable frankly, to say well, I fell on hard times, when we have pretrial services – or the probation office – excuse 24 me – that is standing there willing to help, and you didn’t seize 25 on that opportunity. 26 (Doc. No. 50-1, Ex. 1 at 7.) 27 On January 7, 2019, Petitioner filed his motion to vacate. (Doc. No. 44.) On March 28 14, 2019, the Government filed its opposition. (Doc. No. 50.) On March 21, 2019, 1 Petitioner filed a motion to continue to file his reply by May 2, 2019. (Doc. No. 52.) The 2 Court granted Petitioner’s motion to continue on April 4, 2019. (Doc. No. 53.) However, 3 as of the date of this Order Petitioner has not filed a reply. 4 LEGAL STANDARD 5 “A prisoner in custody under sentence of a court established by Act of Congress 6 claiming the right to be released upon the ground that the sentence was imposed in violation 7 of the Constitution or laws of the United States . . . may move the court which imposed the 8 sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). To warrant relief 9 under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise 10 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 11 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 12 Timmreck, 441 U.S. 780, 783–84 (1979) (quoting Bowen v. Johnston, 306 U.S. 19, 27 13 (1939)). In contrast, “[e]rrors of law which might require reversal of a conviction or 14 sentence on appeal do not necessarily provide a basis for relief under § 2255.” United States 15 v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981). 16 DISCUSSION 17 First, a one-year period of limitation applies to habeas petitions. 28 U.S.C. § 2255(f). 18 “A 1-year period of limitation shall apply to a motion under this section. The limitation 19 shall run from the latest of – (1) the date on which the judgment of conviction becomes 20 final; (2) the date on which the impediment to making a motion created by governmental 21 action in violation of the Constitution or laws of the United States is removed, if the movant 22 was prevented from making a motion by such governmental action; (3) the date on which 23 the right asserted was initially recognized by the Supreme Court and made retroactively 24 applicable to cases on collateral review; or (4) the date on which the facts supporting the 25 claim or claims presented could have been discovered through the exercise of due 26 diligence.” Id. In its opposition, the Government argues that Petitioner’s motion to vacate 27 is untimely. (Doc. No. 50 at 5.) However, Petitioner’s judgment became final on September 28 7, 2018 and Petitioner filed his motion to vacate on January 7, 2019. Further, the 1 Government admitted at the June 27, 2019 hearing on the instant motion that Petitioner’s 2 motion to vacate was in fact timely. Thus, Petitioner’s habeas petition is timely. 3 Petitioner alleges that his counsel was ineffective for failing to present to the Court 4 that Petitioner was homeless and that the probation office failed to adequately supervise 5 him. (Doc. No. 44 at 5.) “[T]o establish ineffective assistance of counsel, a party must 6 demonstrate (1) that counsel’s performance was unreasonable under prevailing 7 professional standards and (2) that there is a reasonable probability that but for counsel’s 8 unprofessional errors, the result would have been different.” Hasan v. Galaza, 254 F.3d 9 1150, 1154 (9th Cir. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687–91 (1984)). 10 Accordingly, “to have the factual predicate for a habeas petition based on ineffective 11 assistance of counsel, a petitioner must have discovered (or with the exercise of due 12 diligence could have discovered) facts suggesting both unreasonable performance and 13 resulting prejudice.” Id. (emphasis in original).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN LESLIE ROE, Case Nos.: 19-cv-00029; 18-cr-1887
12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE 14 UNITED STATES OF AMERICA, PURSUANT TO 28 U.S.C. § 2255 15 Respondent. 16
17 Pending before the Court is Petitioner Steven Leslie Roe’s motion to vacate, set aside 18 or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 44.) As explained in greater 19 detail below, the Court DENIES Petitioner’s motion to vacate. 20 BACKGROUND 21 On April 26, 2018, Petitioner pled guilty to bringing in unlawful alien(s) into the 22 United States without permission in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). (Doc. No. 23 31.) Petitioner was sentenced to fifteen (15) months in custody and three (3) years of 24 supervised release. (Doc. No. 42 at 2–3.) 25 The facts leading up to Petitioner’s guilty plea are as follows. On March 13, 2018, 26 Petitioner entered the United States from Mexico through the San Ysidro Port of Entry. 27 (Doc. No. 35 at 3.) At secondary inspection, officers discovered an individual hiding inside 28 a wooden shelf pressed against the seats of the car. (Id.) The individual was an illegal alien. 1 (Id.) Petitioner had been previously convicted for similar conduct in 2016 and violated the 2 terms of his supervised release for the prior conviction. (Doc. No. 36 at 2.) 3 Petitioner filed a Sentencing Memorandum prior to sentencing where counsel 4 explained: 5 Clearly Mr. Roe struggled to reintegrate into the community after his 2016 conviction for similar conduct. He responded well to 6 supervision and was placed on the administrative caseload; 7 however, he was simply unable afford the necessities like food and shelter. He lost the apartment that he had been living in and 8 could not rent a comparable place. He did not know where to 9 turn. 10 (Id.) Further, at Petitioner’s sentencing hearing on August 20, 2018, counsel further 11 explained, “[m]ost recently, before this offense, his rent had gone up from $1,325 a month 12 to $1,800 a month. His girlfriend left him. In essence, all his resources dried up. He was 13 living in his car.” (Doc. No. 50-1, Ex. 1 at 4.) 14 At Petitioner’s sentencing hearing, Petitioner made a statement regarding his 15 attorney’s conduct stating, “I think Mr. Johnson has laid it out pretty well. I was in a 16 desperate situation. I’m sorry about that, but Mr. Johnson has done a very good job for 17 me.” (Id. at 6.) 18 The Court sentenced Petitioner to 15 months in custody and noted: 19 I gave you a time-served sentence last time, hoping that your age would work against recidivism, and the unfortunate 20 circumstances with supervision would keep you moving 21 forward, not stepping back. And it didn’t. Here we are, two years later, going through a similar situation, another alien smuggling 22 case, another set of circumstances involving substantial risk. And 23 it’s just not acceptable frankly, to say well, I fell on hard times, when we have pretrial services – or the probation office – excuse 24 me – that is standing there willing to help, and you didn’t seize 25 on that opportunity. 26 (Doc. No. 50-1, Ex. 1 at 7.) 27 On January 7, 2019, Petitioner filed his motion to vacate. (Doc. No. 44.) On March 28 14, 2019, the Government filed its opposition. (Doc. No. 50.) On March 21, 2019, 1 Petitioner filed a motion to continue to file his reply by May 2, 2019. (Doc. No. 52.) The 2 Court granted Petitioner’s motion to continue on April 4, 2019. (Doc. No. 53.) However, 3 as of the date of this Order Petitioner has not filed a reply. 4 LEGAL STANDARD 5 “A prisoner in custody under sentence of a court established by Act of Congress 6 claiming the right to be released upon the ground that the sentence was imposed in violation 7 of the Constitution or laws of the United States . . . may move the court which imposed the 8 sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). To warrant relief 9 under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise 10 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 11 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 12 Timmreck, 441 U.S. 780, 783–84 (1979) (quoting Bowen v. Johnston, 306 U.S. 19, 27 13 (1939)). In contrast, “[e]rrors of law which might require reversal of a conviction or 14 sentence on appeal do not necessarily provide a basis for relief under § 2255.” United States 15 v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981). 16 DISCUSSION 17 First, a one-year period of limitation applies to habeas petitions. 28 U.S.C. § 2255(f). 18 “A 1-year period of limitation shall apply to a motion under this section. The limitation 19 shall run from the latest of – (1) the date on which the judgment of conviction becomes 20 final; (2) the date on which the impediment to making a motion created by governmental 21 action in violation of the Constitution or laws of the United States is removed, if the movant 22 was prevented from making a motion by such governmental action; (3) the date on which 23 the right asserted was initially recognized by the Supreme Court and made retroactively 24 applicable to cases on collateral review; or (4) the date on which the facts supporting the 25 claim or claims presented could have been discovered through the exercise of due 26 diligence.” Id. In its opposition, the Government argues that Petitioner’s motion to vacate 27 is untimely. (Doc. No. 50 at 5.) However, Petitioner’s judgment became final on September 28 7, 2018 and Petitioner filed his motion to vacate on January 7, 2019. Further, the 1 Government admitted at the June 27, 2019 hearing on the instant motion that Petitioner’s 2 motion to vacate was in fact timely. Thus, Petitioner’s habeas petition is timely. 3 Petitioner alleges that his counsel was ineffective for failing to present to the Court 4 that Petitioner was homeless and that the probation office failed to adequately supervise 5 him. (Doc. No. 44 at 5.) “[T]o establish ineffective assistance of counsel, a party must 6 demonstrate (1) that counsel’s performance was unreasonable under prevailing 7 professional standards and (2) that there is a reasonable probability that but for counsel’s 8 unprofessional errors, the result would have been different.” Hasan v. Galaza, 254 F.3d 9 1150, 1154 (9th Cir. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687–91 (1984)). 10 Accordingly, “to have the factual predicate for a habeas petition based on ineffective 11 assistance of counsel, a petitioner must have discovered (or with the exercise of due 12 diligence could have discovered) facts suggesting both unreasonable performance and 13 resulting prejudice.” Id. (emphasis in original). The Court reviews counsel’s performance 14 with deferential scrutiny, indulging a strong presumption that counsel’s conduct falls 15 within the wide range of reasonable professional assistance and recognizing the many 16 choices that attorneys make in handling cases and the danger of second-guessing an 17 attorney’s decisions. Strickland, 466 U.S. at 689. 18 Here, Petitioner’s counsel did bring the Court’s attention to the fact that he was living 19 in his car and had fallen upon hard times. Petitioner’s counsel did not blame the probation 20 office for Petitioner’s circumstances as Petitioner perhaps would have preferred his counsel 21 to do at his sentencing hearing. However, the fact that Petitioner’s counsel did not blame 22 the probation office does not fall outside of the range of reasonable professional assistance. 23 Further, Petitioner himself praised his attorney’s representation of him at sentencing. 24 Accordingly, the Court finds that Petitioner has failed to establish that his counsel’s 25 performance was unreasonable. 26 Second and most importantly, Petitioner has failed to plead facts suggesting that his 27 counsel’s actions resulted in prejudice. Prejudice is determined based on an objective 28 evaluation. See Hill v. Lockhart, 474 U.S. 52, 59–60 (1985). “[T]o demonstrate prejudice, 1 the petitioner must show ‘it is reasonably likely the result would have been different’ but 2 for counsel's ineptitude. And ‘[t]he likelihood of a different result must be substantial, not 3 just conceivable.’” Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014) (quoting Harrington 4 v. Richter, 131 S.Ct. 770, 792 (2011)) (citing Strickland, 446 U.S. at 694 (holding that 5 petitioner must prove there is a “reasonable probability that, but for counsel’s 6 unprofessional errors, the result of the proceeding would have been different.”)). 7 Here, Petitioner has failed to show how counsel’s decision to not blame the probation 8 office and government for his hard times actually prejudiced Petitioner. The Court stated 9 explicitly during sentencing that it was not acceptable to say that Petitioner fell on hard 10 times and that Petitioner did not seize the opportunity to have the probation office assist 11 him. Accordingly, the Court was aware of the circumstances surrounding the offense and 12 shifting the blame to the probation office would not have led to a different result. 13 Accordingly, Petitioner has suffered no prejudice from his counsel’s decision to not blame 14 the probation office for his crime. 15 CONCLUSION 16 Based on the foregoing, the Court DENIES Petitioner’s motion to vacate. Absent a 17 certificate of appealability from this circuit court or the district court, “an appeal may not 18 be taken from a final decision of a district judge in a habeas corpus proceeding or a 19 proceeding under 28 U.S.C. § 2255.” Chafin v. Chafin, 568 U.S. 165, 184 (2013). A court 20 may issue a certificate of appealability where the petitioner has made a “substantial 21 showing of the denial of a constitutional right,” and reasonable jurists could debate whether 22 the motion should have been resolved differently, or that the issues presented deserve 23 encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 24 Under this standard, the Court finds that Petitioner has not made the necessary showing. 25 Thus, a certificate of appealability is therefore DENIED. 26 IT IS SO ORDERED. 27 28 1 Dated: October 22, 2019 © 2 Hon, Anthony J.Battaglia 3 United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28