The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS MOVANT'S § 2255 MOTION
Movant Jose Luis Valenzuela Vega, a federal prisoner currently incarcerated at California City Correctional Institute in California City, California, filed a document titled, "Motion to Vacate Void Judgment," which the Court construes to be a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Respondent the United States has filed a motion to dismiss. Movant has not filed an opposition to Respondent's motion. Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion to dismiss.
On October 1, 2002, a criminal complaint charged Movant with Illegal Re-entry Following Deportation, in violation of 8 U.S.C. § 1326. Resp.'s Ex. A, Criminal Complaint; Docket no. 1. On January 16, 2003, a grand jury indicted Movant for violation of 8 U.S.C. § 1326. Resp.'s Ex. C, Indictment; Docket no. 7. On October 30, 2003, Movant was arraigned on a superseding information charging two felony counts of Illegal Entry, in violation of 8 U.S.C. § 1325. Resp.'s Ex. D, Superseding Information; Docket no. 19. On the same date, Movant signed and filed a waiver of indictment. Docket no. 20.
On November 3, 2003, Movant entered a guilty plea to the two-count superseding information and was sentenced pursuant to the plea agreement. Resp.'s Supp. Ex. A, Plea Agreement; Docket no. 20. In the plea agreement, pursuant to Federal Rules of Criminal Procedure 11(c)(1)(C), Movant and the United States agreed the appropriate sentence in the case would be two years in prison for each count to run consecutively, one year supervised release and $200 special assessment. Resp.'s Supp. Ex. A, Plea Agreement ¶ 9. Movant also agreed he would not file any collateral attack on his conviction or sentence pursuant to 28 U.S.C. § 2255, unless he was claiming that his constitutional right to effective assistance of counsel had been violated. Id. ¶ 5. Movant was sentenced pursuant to the plea agreement and judgment was entered on November 7, 2003. Resp.'s Ex. E, Judgment; Docket no. 23.
On May 6, 2005, Movant pro se filed this motion seeking relief from his sentence pursuant to 28 U.S.C. § 2255. Amidst a great deal of irrelevant material, Movant raises two arguments in support of his motion: (1) the criminal complaint was not "signed and sworn to by an Injured Party/Victim"; and (2) he was not indicted by a grand jury. Motion at 5. On June 20, 2005, Respondent filed a motion to dismiss the action on the grounds that (1) the action was filed outside the one-year statute of limitation prescribed by 28 U.S.C. § 2255; and (2) there is no merit to Movant's allegations that criminal complaint was not "signed and sworn to" and that he was not indicted by a grand jury. On August 16, 2005, Respondent filed a supplemental motion to dismiss the action on the additional ground that the plea agreement precludes Movant from bringing an action under 28 U.S.C. § 2255, unless it is based on ineffective assistance of counsel.
A prisoner, in custody under sentence of a federal court, making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the court which imposed the sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Section 2255 was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Addonizio, 442 U.S. 178, 185 (1979). Under 28 U.S.C. § 2255, a federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
In reviewing a § 2255 motion, a federal court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The motion must provide specific factual allegations which, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
II. Statute of Limitations
Respondent argues that Movant cannot bring this § 2255 motion because it was filed outside the one-year statute of limitations. A motion to vacate, set aside or correct a federal sentence under § 2255 must be filed within one year of the latest of the date on which: (1) the judgment of conviction became final; (2) an impediment to making a motion created by governmental action was removed, if such action prevented the petitioner from making a motion; (3) the right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255; United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004).
Because Movant's conviction became final on November 7, 2003, his motion to vacate his sentence, filed on May 6, 2005, was submitted more than one year after the final judgment. Movant does not allege that there was any impediment created by governmental action to making his current motion. He does not rely upon a newly recognized right or newly discovered facts. Rather, Movant makes meritless claims that the criminal complaint was not "signed and sworn to," although it was, and that he was not indicted by a grand jury, although he waived indictment on the reduced charges to which he plead guilty pursuant to the plea agreement. Therefore, Respondent's ...