Alejandro Hernandez-Munoz v. USA
Filing
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MEMORANDUM AND ORDER by Judge Virginia A. Phillips, DENYING MOTION Under 28 USC Section 2255 to Vacate or Set Aside Conviction 1 : (see document image for complete details). (ad)
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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19 20 ) ) ) ) ) Plaintiff/Respondent, ) v. ) ) ALEJANDRO MUNOZ ) HERNANDEZ, ) ) ) Defendant/Petitioner. ) ________________________ ) I. Case No. EDCV 08-1044-VAP [Motion filed on August 4, 2008] MEMORANDUM AND ORDER DENYING MOTION UNDER 28 U.S.C. SECTION 2255 TO VACATE OR SET ASIDE CONVICTION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
SUMMARY OF PROCEEDINGS
On August 4, 2008, pro se Petitioner Alejandro Munoz
21 Hernandez filed a "Motion for Reduction of Sentence by an 22 Inmate in Federal Custody" pursuant to 28 U.S.C. § 2255 23 ("Mot."). On September 19, 2008, Respondent United Petitioner has not filed Opposition. 24 States of America filed a Motion to Dismiss Petitioner's 25 § 2255 Motion. 26 27 28
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II.
BACKGROUND
On November 1, 2005, a federal grand jury returned a The indictment charged Petitioner with, in
3 five-count indictment against Petitioner and two co4 defendants. 5 Count One, violation of 21 U.S.C. § 846, conspiracy to 6 possess with intent to distribute and to distribute 7 methamphetamine, in Count Two, violation of 21 U.S.C. § 8 841(a)(1), distribution of methamphetamine, in Counts 9 Three and Four, violation of 21 U.S.C. § 841(a)(1), 10 possession of methamphetamine with the intent to 11 distribute, and in Count Five, violation of 21 U.S.C. § 12 841(a)(1), possession of marijuana with the intent to 13 distribute. 14 15 On March 20, 2006, Petitioner pled guilty to Count On June 12, 2006, the Court 16 One of the indictment.
17 sentenced Petitioner to 78 months of imprisonment. 18 Petitioner did not appeal from his conviction or his 19 sentence. 20 21 22 III. MOVANT'S CONTENTIONS Giving the § 2255 Motion a liberal construction, it
23 appears that Petitioner asserts that his status as an 24 alien resulted in the denial of (1) eligibility for a 25 sentence reduction after completion of a drug program and 26 (2) eligibility for confinement in a halfway house. 27 claims that this violates "Equal rights protection" 28
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He
1 afforded by the Fourteenth Amendment to the United States 2 Constitution and the Due Process Clause of the Fifth 3 Amendment." 4 5 6 IV. DISCUSSION As Respondent argues, the Motion is untimely brought (Mot. at 1-2.)
7 under Section 2255, and subject to denial solely on that 8 basis. 9 10 Section 2255 requires that any motion for relief 28 11 under that section must be filed within one year "from 12 the date on which the conviction becomes final." 13 U.S.C. § 2255(1). Petitioner's conviction became final
14 on July 6, 2006; thus, in order to be timely, any Section 15 2255 Motion had to be filed no later than July 6, 2007. 16 Petitioner did not file this Motion until August 4, 2008, 17 approximately thirteen months beyond the statutory 18 deadline. Moreover, to the extent Petitioner would be 19 entitled to the benefit of the "mailbox rule,"1 the Court 20 notes that the Motion is dated by Petitioner on July 30, 21 2008, and thus would be untimely even upon application of 22 that rule. 23 24 25 The "prison mailbox rule" established by the U.S. Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), 26 permits a prisoner's federal habeas petition or civil 27 rights complaint to be deemed filed when he hands it over to prison authorities for mailing to the district court. 28
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The Motion is denied as untimely.
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Furthermore, as the Respondent correctly points out,
2 Petitioner did not raise any of his claims regarding the 3 supposed defects in his sentence on direct appeal. 4 "Habeas review is an extraordinary remedy and will not be 5 allowed to do service for an appeal." 6 States, 523 U.S. 614, 621 (1998). Bousley v. United "Where a defendant has
7 procedurally defaulted a claim by failing to raise it on 8 direct review, the claim may be raised in habeas only if 9 the defendant can first demonstrate either 'cause' and 10 actual 'prejudice' or that he is actually innocent." 11 at 622 (internal citations omitted). See also United Id.
12 States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) 13 (sentencing errors not raised on direct appeal are waived 14 and may not be reviewed by section 2255 motion). 15 Furthermore, as Respondent argues, Petitioner waived, 16 pursuant to the terms of his plea agreement with 17 Respondent, the right to bring a collateral attack on his 18 sentence. 19 20 21 22 23 24 25 26 27 28
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For these reasons, Petitioner's Motion is DENIED.
Dated:
November 24, 2008 VIRGINIA A. PHILLIPS United States District Judge
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