United States of America v. Marvin Clavel

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 UNITED STATES OF AMERICA, Case No.: 11cr3976 / 25cv1602 - WQH

9 Plaintiff, ORDER 10 v. 11 MARVIN CLAVEL, 12 Defendant. 13 HAYES, Judge: 14 The matter before the Court is the Motion to Vacate, Set Aside or Correct Sentence 15 by a Person in Federal Custody under 28 U.S.C. § 2255 (“§ 2255 Motion,” ECF No. 18), 16 the Motion to Reconsider Appointment of Counsel (ECF No. 27), and the request for an 17 evidentiary hearing (ECF No. 28), filed by Defendant Marvin Clavel. 18 I. Background 19 In 2003, when Clavel was 25-years-old, he was convicted of possession of a knife 20 at a school in Los Angeles County Superior Court. (ECF No. 10 at 5.) 21 On August 24, 2004, Clavel, who is a citizen of El Salvador, was granted legal status 22 in the United States. Id. at 7. 23 In 2006, Clavel was convicted of felony robbery in Los Angeles County Superior 24 Court. Id. at 5. 25 In October 2007, Clavel was convicted of misdemeanor theft in Los Angeles County 26 Superior Court. Id. at 6. 27 28 1 In March 2008, Clavel was convicted of felony burglary in Los Angeles County 2 Superior Court and sentenced to three years in prison. Id. 3 In February 2011, Clavel was deported from the United States to El Salvador. Id. at 4 7. 5 On June 29, 2011, Clavel was arrested in Seeley, California, and a Complaint was 6 filed in this Court charging Clavel with being a Deported Alien Found in the United States 7 in violation of 8 U.S.C. § 1326. 8 On November 11, 2011, pursuant to a Plea Agreement, Clavel pleaded guilty to the 9 sole count in the Indictment in this case charging him with being a Deported Alien Found 10 in the United States in violation of 8 U.S.C. § 1326. (ECF Nos. 8, 9.) In his Plea Agreement, 11 entered with the advice of counsel, Clavel agreed to waive his rights to appeal or 12 collaterally attack his conviction and sentence, and “affirm[ed] that he wants to plead guilty 13 regardless of any immigration consequences that his plea may entail, even if the 14 consequence is his automatic removal from the United States.” (ECF No. 9 at 9.) 15 On March 5, 2012, this Court sentenced Clavel to the custody of the Bureau of 16 Prisons for 33 months followed by one year of supervised release. (ECF No. 15.) 17 On October 13, 2021, Clavel was convicted of felony burglary in Los Angeles 18 County Superior Court and sentenced to four years in prison. (ECF No. 22-1 at 12.) 19 On June 20, 2025, Clavel filed the pending § 2255 Motion. (ECF No. 18.) Clavel 20 requests that the Court vacate, set aside, or correct his 2012 conviction for violating 8 21 U.S.C. § 1326. Clavel asserts that he is currently in the custody of the Department of 22 Homeland Security and he contends: 23 The conviction [in the above-captioned case] arose from a removal order which was unlawful when entered. The removal order was based on state court 24 convictions that have since been found to be unconstitutional. Pursuant to 25 California Penal Code 1473.7(a)(1), the state court vacated one of the state convictions altogether, and vacated the second conviction’s sentence. With 26 these rulings by the state court, the charges of deportability underlying the 27 removal order cannot be sustained.

28 1 Id. at 6. 2 On August 8, 2025, the Government filed a Response in opposition to the § 2255 3 Motion. (ECF No. 22.) The Government contends that the § 2255 Motion should be denied 4 for the following reasons: “The Court Lacks Jurisdiction to Consider Petitioner’s § 2255”; 5 “Clavel’s Knowing and Voluntary Waiver of Collateral Attack Bars the Present Motion”; 6 “Clavel’s Motion is Untimely Under 28 U.S.C. § 2255”; “Clavel’s Failure to Identify 7 Which Convictions Were Vacated Warrants Dismissal of this 2255 Motion”; “Clavel’s 8 Challenge to His Removal Order Fails Under 8 U.S.C. § 1326(d)”; and “Clavel’s Motion 9 is Barred by Procedural Default.” Id. at 3, 4, 5, 6, 8, 10. 10 On November 18, 2025, Clavel filed a Motion to Appoint Counsel. (ECF No. 25.) 11 On November 20, 2025, the Court issued an Order denying the Motion to Appoint 12 Counsel and extending the time for Defendant to file a reply. (ECF No. 26.) 13 On December 22, 2025, Clavel filed a Motion to Reconsider Appointment of 14 Counsel (ECF No. 27), and a Reply in support of his § 2255 Motion, which includes a 15 request for an evidentiary hearing. (ECF No. 28.) Clavel attaches records that he contends 16 demonstrate that his prior state felony convictions were expunged or vacated in California 17 state court in March and October of 2025. (See ECF Nos. 27-1 at 13, 27-2 at 32, 27-3 at 18 29.) 19 II. Discussion 20 A. Standard of Review 21 A federal prisoner making a collateral attack against the validity of his conviction or 22 sentence must do so by way of a motion to vacate, set aside, or correct the sentence pursuant 23 to 28 U.S.C. § 2255. Section 2255 states: 24 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was 25 imposed in violation of the Constitution or law of the United States, or that 26 the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise 27 subject to collateral attack, may move the court which imposed the sentence 28 to vacate, set aside or correct the sentence. 1 28 U.S.C. § 2255(a). “Congress enacted § 2255 to simplify the habeas process for federal 2 prisoners. The section provides ‘a remedy [in the sentencing court] exactly commensurate 3 with that which had previously been available by habeas corpus in the court of the district 4 where the prisoner was confined.’” United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 5 2010) (quoting Hill v. United States, 368 U.S. 424, 427 (1962)). “Because a § 2255 motion 6 is ‘commensurate’ with habeas relief, it may only be used to collaterally attack a conviction 7 and sentence ‘upon the ground that the sentence was imposed in violation of the 8 Constitution or laws of the United States.’” Id. (quoting 28 U.S.C. § 2255; citing United 9 States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981) (“[Motions under § 2255 are limited 10 to:] (1) constitutional issues, (2) challenges to the district court’s jurisdiction to impose the 11 sentence, (3) challenges to the length of a sentence imposed in excess of the statutory 12 maximum, and (4) claims that the sentence is otherwise subject to collateral attack.”)). 13 B. Jurisdiction 14 The Government contends that “[t]his Court lacks jurisdiction to consider Clavel’s 15 petition pursuant to 28 U.S.C. § 2255 because he is no longer ‘in custody’ pursuant to his 16 2012 conviction for violating Title 8 U.S.C. § 1326.” (ECF No. 22 at 3.) Clavel responds 17 that the Court has jurisdiction because Clavel’s current “immigration detention is directly 18 related to his standing 2012 conviction of violating title 8 U.S.C. § 1326.” (ECF No. 28 at 19 3.) 20 As quoted above, § 2255 applies to “[a] prisoner in custody under sentence of a court 21 established by Act of Congress.” 28 U.S.C. § 2255(a) (emphasis added). “This ‘in custody’ 22 requirement has been interpreted to mean that federal courts lack jurisdiction over habeas 23 corpus petitions unless the petitioner is ‘under the conviction or sentence under attack at 24 the time his petition is filed.’” Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005) 25 (quoting Maleng v. Cook, 490 U.S. 488, 490–91 (1989)), abrogation on other grounds 26 recognized by Chaidez v. United States, 568 U.S. 342, 356, n.14 (2013). “Immigration 27 consequences, such as deportation, have long been viewed as ‘collateral,’ and thus are not 28 1 themselves sufficient to render an individual ‘in custody.’” Resendiz, 416 F.3d at 956 2 (citing Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976)); see also Contreras v. 3 Schiltgen, 151 F.3d 906, 908 (9th Cir. 1998). 4 According to the Federal Bureau of Prison’s website, Clavel completed his custodial 5 sentence in this case on November 15, 2013. Clavel’s one-year term of supervised release 6 ended in November 2014. After this date, Clavel was no longer “[a] prisoner in custody 7 under sentence of” this Court in the above-captioned case. 28 U.S.C. § 2255(a) (emphasis 8 added). Clavel contends that, because he successfully vacated his prior state court felony 9 convictions in March 2025 and October 2025, “Clavel would not [currently] be in 10 [immigration] detention if not for his 2012 removal order conviction (the underlying 1326 11 conviction that took his status in this country).” (ECF No. 28 at 3.) Even if this assertion is 12 true, “[i]mmigration consequences, such as deportation, have long been viewed as 13 ‘collateral,’ and thus are not themselves sufficient to render an individual ‘in custody.’” 14 Resendiz, 416 F.3d at 956. As the Supreme Court has stated: “[O]nce the sentence imposed 15 for a conviction has completely expired, the collateral consequences of the conviction are 16 not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas 17 attack upon it.” Maleng, 490 U.S. at 492. The Court finds that it does not have jurisdiction 18 to consider the § 2255 Motion because Clavel is not “in custody” pursuant to his 2012 19 conviction in this case. 20 Although the issue is not raised by Clavel, the Court notes that Clavel may have a 21 basis to file a petition pursuant to 28 U.S.C. § 2241.1 “Under the savings clause of § 2255, 22 … a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the 23 legality of a sentence where his remedy under § 2255 is ‘inadequate or ineffective to test 24 the legality of his detention.’” Hernandez v. Campbell, 204 F.3d 861, 864–65 (9th Cir. 25 2000) (quoting 28 U.S.C. § 2255). However, “a habeas petition filed pursuant to § 2241 26 27 28 1 must be heard in the custodial court …, even if the § 2241 petition contests the legality of 2 a sentence by falling under the [§ 2255] savings clause.” Id. at 865. Here, Clavel is in 3 custody in California City, California, which is in the Eastern District of California. 4 Accordingly, this Court is the wrong venue to hear any petition pursuant to § 2241. Because 5 a § 2241 remedy may be available and the record does not show that Clavel has made an 6 effort to pursue such a remedy, the Court declines to sua sponte construe Clavel’s § 2255 7 Motion as a motion for writ of error coram nobis. See United States v. Riedl, 496 F.3d 8 1003, 1005–06 (9th Cir. 2007) (“Both the Supreme Court and we have long made clear 9 that the writ of error coram nobis is a highly unusual remedy, available only to correct 10 grave injustices in a narrow range of cases where no more conventional remedy is 11 applicable…. [C]onsistent with the extraordinary nature of coram nobis relief, … a 12 petitioner must show the following to qualify for coram nobis relief: (1) a more usual 13 remedy is not available….”) (citations omitted). 14 Because the Court finds that it has no jurisdiction to consider the § 2255 Motion, the 15 Court declines to address the other arguments raised by the Government for denying the § 16 2255 Motion. 17 C. Evidentiary Hearing 18 For the reasons discussed above, the Court finds that record of the case conclusively 19 shows that the Court lacks jurisdiction over the § 2255 Motion. Accordingly, the Court 20 finds that Clavel’s § 2255 Motion may be resolved on the record and does not require an 21 evidentiary hearing. 22 D. Certificate of Appealability 23 A certificate of appealability is authorized “if the applicant has made a substantial 24 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this 25 threshold substantial showing, the movant must “demonstrate that the issues are debatable 26 among jurists of reason; that a court could resolve the issues [in a different manner]; or that 27 the questions are adequate to deserve encouragement to proceed further.” Lambright v. 28 Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 1 n.4 (1983)). The Court finds that the Barefoot standard has not been satisfied as to 2 || question of the Court’s jurisdiction over the § 2255 Motion. A certificate of appealability 3 denied. 4 E. Motion to Reconsider Appointment of Counsel 5 On November 12, 2025, the Court issued an Order denying Clavel’s Motion for 6 || Appointment of Counsel, which included the “find[ing] that the interests of justice do not 7 || warrant appointment of counsel at this stage in the proceedings considering the □□□□□□□□□□□ 8 arguments, the lack of complexity of the issues, and the fact that Defendant has adequately 9 || articulated his argument in his § 2255 Motion.” (ECF No. 26 at 2 (citing Weygandt v. Look, 10 F.2d 952, 954 (9th Cir. 1983).) Given Clavel’s thorough and well-articulated 11 |}/arguments in his subsequent filings (see ECF Nos. 27, 28) and the Court’s conclusion that 12 lacks jurisdiction over Clavel’s § 2255 Motion, the Court continues to find that the 13 |/interests of justice do not warrant appointment of counsel. The Motion to Reconsider 14 || Appointment of Counsel is denied. 15 HI. Conclusion 16 IT IS HEREBY ORDERED that the § 2255 Motion is denied for lack of jurisdiction 17 || (ECF No. 18), the Motion to Reconsider Appointment of Counsel is denied (ECF No. 27), 18 the request for an evidentiary hearing is denied (ECF No. 28). A certificate of 19 || appealability 1s denied. The rulings herein are without prejudice to Clavel’s right to file a 20 || petition pursuant to 28 U.S.C. § 2241 in a district court located in the district of his 21 ||confinement. This case remains closed. 22 Dated: February 10, 2026 Nitta Ze. Ma 23 Hon, William Q. Hayes 4 United States District Court 25 26 27 28