Oranga-Zuniga v. United States of America, No. 2:2013cv01364 - Document 8 (W.D. Wash. 2014)
Court Description: ORDER DENYING 2255 MOTION by Judge Ricardo S Martinez. (RS) cc Oranga-Zuniga
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Oranga-Zuniga v. United States of America Doc. 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JACIEL ORANGA-ZUNIGA CASE NO. C13-1364-RSM Petitioner, 11 ORDER DENYING § 2255 MOTION 12 v. 13 UNITED STATES OF AMERICA 14 Respondent. 15 16 17 18 19 20 21 I. INTRODUCTION Before the Court is pro se Petitioner Jaciel Oranga-Zuniga’s first 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, which he contends resulted from an involuntary guilty plea. Dkt. # 1. Having considered both the Government’s response to the motion as well as Petitioner’s untimely reply, the Court will deny the motion and dismiss the petition. 22 23 24 ORDER DENYING § 2255 MOTION - 1 Dockets.Justia.com 1 2 II. BACKGROUND Petitioner is a prisoner in federal custody. He challenges the validity of his guilty plea, 3 entered on March 5, 2007, to one count of Conspiracy to Distribute Cocaine and Heroin in 4 violation of Title 21, United States Code, Sections 841(a), 841(b)(1)(A), and 846. As part of that 5 guilty plea, Petitioner admitted that $9,387 in currency seized from his bedroom at the time of 6 arrest was drug proceeds, and subject to forfeiture. CR Dkt. # 219, ¶ 7.c.i., ¶ 11 (Plea 7 Agreement). Upon accepting Petitioner’s guilty plea and the parties’ Rule 11(c)(1)(C) Plea 8 Agreement, this Court imposed a sentence of 121 months’ imprisonment on June 1, 2007. CR 9 Dkt. # 267 (Judgment). Pursuant to the agreement of the parties in the Plea Agreement and the 10 stipulated Preliminary Order of Forfeiture, signed by Petitioner and his counsel, this Court also 11 ordered criminal forfeiture of the $9,387. Id.; CR Dkt. # 268 (Preliminary Order of Forfeiture); 12 CR Dkt. # 308 (Final Order of Forfeiture). 13 In his § 2255 motion, Petitioner contends that his counsel was ineffective and his plea 14 involuntary because he was not adequately notified about this forfeiture agreement prior to 15 entering his guilty plea. Dkt. # 1, pp. 4-6. He seeks an order vacating the forfeiture. Id. at 10. 16 III. DISCUSSION 17 A. Petitioner’s § 2255 Motion 18 Petitioner’s motion raises two grounds for relief. First, Petitioner argues that his counsel 19 “was ineffective in his forfeiture proceeding” by “failing to provide him notice of forfeiture 20 proceedings and his opportunity to file a claim.” Dkt. # 1, p. 4. Second, he argues that counsel 21 was ineffective for “failure to advise him of his constitutional rights guaranteed by the Fifth and 22 Sixth Amendments, which resulted in his unknowing, involuntary guilty plea” with regard to 23 “his rights to forfeiture.” Id. at 5-6. As to the relief he seeks, Petitioner states that “[he] seeks this 24 ORDER DENYING § 2255 MOTION - 2 1 Court vacate his forfeiture and allow him to judicial forfeiture and proceed to a judicial 2 forfeiture.” Id. at 10. 3 Section 2255 provides in relevant part: 4 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 imposed in violation of the Constitution or laws of the United States, or that 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 subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence ... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. 5 6 7 8 9 10 11 28 U.S.C. § 2255. In United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999), the Ninth 12 Circuit Court of Appeals held that “by its plain terms, § 2255 is available only to defendants who 13 are in custody and claiming the right to be released. It cannot be used solely to challenge a 14 restitution order.” In other words, “[c]laims seeking release from custody can be brought under § 15 2255; claims seeking other relief cannot.” United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 16 2002). “To determine whether a given claim is cognizable under § 2255, we focus on the relief 17 sought in the claim itself, not on relief sought in other claims mentioned elsewhere in the 18 motion.” Id. Here, although couched as an ineffective assistance of counsel claim, Petitioner’s 19 motion plainly seeks to challenge the Court’s prior order of forfeiture. Petitioner’s claim is not 20 cognizable through a § 2255 motion. See id. 21 Further, even if Petitioner’s motion raised a cognizable ground for relief, such a claim 22 would be time barred. Title 28 U.S.C. § 2255 contains a one-year limitation period that runs from 23 the latest of four specified events: (1) “the date on which the judgment of conviction becomes 24 ORDER DENYING § 2255 MOTION - 3 1 final;” (2) “the date on which the impediment to making a motion created by governmental 2 action in violation of the Constitution or laws of the United States is removed, if the movant was 3 prevented from making a motion by such governmental action;” (3) “the date on which the right 4 asserted was initially recognized by the Supreme Court, if that right has been newly recognized 5 by the Supreme Court and made retroactively applicable to cases on collateral review;” or (4) 6 “the date on which the facts supporting the claim or claims presented could have been discovered 7 through the exercise of due diligence.” 28 U.S.C. § 2255(f). A conviction is final when “a 8 judgment of conviction has been rendered, the availability of appeal exhausted, and the time for 9 certiorari elapsed or a petition for certiorari denied.” Griffith v. Kentucky, 479 U.S. 314, 321 n.6 10 (1987). 11 Here, Petitioner’s sentence was imposed on June 1, 2007. No notice of direct appeal was 12 filed. Thus, his judgment of conviction became final no later than fourteen days after sentencing. 13 See Fed. R. App. P. 4(b)(1)(A). He was required by statute to file any § 2255 claim within one 14 year. See 28 U.S.C. § 2255(f). Petitioner’s § 2255 Motion was signed on July 25, 2013, which is 15 five years beyond the expiration of the limitations period. 16 In Petitioner’s motion, he asserts that his petition is eligible for statutory tolling. He 17 argues that his motion is timely because it was filed within one year of “the date on which the 18 facts supporting the claim or claims presented could have been discovered through the exercise 19 of due diligence.” 28 U.S.C. § 2255(f); see Dkt. # 1, p. 9. Specifically, Petitioner claims he was 20 unaware of the judicial forfeiture of currency and unaware of the alleged constitutional error 21 until January 24, 2013, when the United States responded to his pro se motion for return of 22 property. Id. at 9. 23 24 ORDER DENYING § 2255 MOTION - 4 1 The record in Petitioner’s criminal case contradicts his assertion. It demonstrates (1) that 2 the currency at issue was explicitly listed as one of the assets pending judicial forfeiture in the 3 Superseding Indictment (CR Dkt. # 78, p. 3, ¶ 6.f. (“$9,387, more or less, seized from 11108 4 Chennault Beach, #2011, Mukilteo, Washington”)); (2) that Petitioner agreed to forfeit this 5 currency to the United States, admitting that it “is the proceeds of unlawful conspiracy to 6 distribute cocaine and heroin or was used or intended to be used to facilitate unlawful conspiracy 7 to distribute cocaine and heroin, as charged in Count 1 of the First Superseding Indictment” (CR 8 Dkt. # 219, p. 8, ¶ 11); (3) that on the same day as the sentencing hearing, Petitioner signed a 9 stipulated Preliminary Order of Forfeiture which sought to forfeit this currency as part of the 10 sentence (CR Dkt. # 268, p. 4); and (4) that the Court signed the Preliminary Order of Forfeiture 11 in open court during the sentencing hearing, and ordered forfeiture of this currency as part of the 12 imposed sentence, as reflected in the minutes and as recorded on Petitioner’s written Judgment 13 (CR Dkt. ## 262, 267, p. 6). Further, the record shows that Petitioner was assisted by a Spanish14 language translator at both the plea hearing and the sentencing hearing, during which the 15 forfeiture was addressed. CR Dkt. ## 214, 262. Thus, his contention that he was not told that the 16 currency was subject to forfeiture is without merit. The claim is subject to dismissal as untimely. 17 B. Evidentiary Hearing 18 A petitioner is entitled to an evidentiary hearing only if he (1) alleges specific facts 19 which, if true, would entitle the petitioner to relief, and (2) the petition, files, and record of the 20 case do not conclusively show that he is not entitled to relief. 28 U.S.C. § 2255. Where a petition 21 consists only of conclusory allegations, no evidentiary hearing is required. United States v. 22 McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996). Here, Petitioner’s conclusory allegation that he 23 did not know the facts concerning the forfeiture of currency until 2013 is directly contradicted by 24 the record. Accordingly, the Court finds that no evidentiary hearing is required. ORDER DENYING § 2255 MOTION - 5 1 C. Certificate of Appealability 2 An appeal of this Order may not be taken unless this Court or a Circuit Judge issues a 3 certificate of appealability, finding that “the applicant has made a substantial showing of the 4 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires that “reasonable jurists 5 would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 6 v. McDaniel, 529 U.S. 473, 484 (2000). If the district court dismisses the petition on procedural 7 grounds, it must determine whether the petition states a valid claim for the denial of a 8 constitutional right and that reasonable jurists would find the procedural ruling correct. Id. at 9 474. The Court concludes that a certificate of appealability should not issue because Petitioner 10 has failed to make a substantial showing that he was denied a constitutional right, and that jurists 11 of reason would not find it debatable whether the Court was correct in any procedural or 12 substantive ruling. IV. CONCLUSION 13 14 Having considered Petitioner’s § 2255 motion, the Government’s Response, Petitioner’s 15 Reply, and the remainder of the record, the Court hereby finds and ORDERS: 16 17 (1) Petitioner’s § 2255 Motion to Vacate, Set Aside, or Correct the Sentence (Dkt. # 1) is DENIED; 18 (2) No Certificate of Appealability shall be issued; 19 (3) The Clerk is directed to send a copy of this Order to Peitioner and all counsel of 20 21 record. Dated this 7 day of July 2014. 22 23 A 24 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE ORDER DENYING § 2255 MOTION - 6
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