Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ceja v. United States

January 9, 2009

EVERARDO SILVA CEJA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT

On December 30, 2008, Petitioner Everardo Silva Ceja, proceeding in pro per, timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

A. Background

On April 3, 2003, Petitioner was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Indictment alleged that: defendant herein, on or about October 23, 2001, in the County of Fresno, State and Eastern District of California, after having been previously convicted of Discharge of a Firearm at an Occupied Vehicle, in violation of California Penal Code Section 244, on or about July 9, 1993, in the Superior Court of California, County of Fresno, Case Number 486174-6; Felony Spousal Abuse, in violation of California Penal Code Section 273.5, on or about October 16, 1997, in the Superior Court of California, County of Fresno, Case Number 581888-5; and, Felony Battery on a Peace Officer, in violation of California Penal Code Section 243(c), on or about December 19, 1998, in the Superior Court of California, County of Fresno, Case Number 615118-7, crimes punishable by a term of imprisonment exceeding one year, did knowingly possess a firearm, to wit: a Jennings, model 38, .380 caliber semiautomatic pistol, and Winchester .380 caliber ammunition, in and affecting commerce, in that said firearm and ammunition had been shipped and transported in interstate and foreign commerce, in violation of Title 18, United States Code, Section 922(g)(1).

Petitioner initially was represented by Thomas J. Richardson. Anthony Capozzi was substituted as counsel of record on June 30, 2003. While represented by Mr. Capozzi, Petitioner pleaded guilty pursuant to a written Plea Agreement. The Plea Agreement provided:

The defendant also gives up any right he may have to bring a post-conviction attack on his conviction or sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.

The Plea Agreement specifically stated:

The defendant has read the charges against him contained in the Indictment in this case, and the charges have been fully explained to him by counsel. Further, the defendant fully understands the nature and elements of the crimes [sic] with which he has been charged, together with the possible defenses thereto, and has discussed them with counsel. The defendant understands that in order to prove him guilty of the charge of being a felon in possession of a firearm and ammunition, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly possessed a firearm or ammunition that had been shipped or transported from one state to another; and, Second, at the time the defendant possessed the firearm or ammunition, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

The factual basis for Petitioner's guilty plea was set forth in Exhibit A to the Plea Agreement:

On October 23, 2001, in the City of Fresno in the State and Eastern District of California, the defendant knowingly possessed a firearm, to wit: a Jennings, model 38, .380 caliber semiautomatic pistol, and Winchester .380 caliber ammunition, in and affecting commerce, in that the firearm and ammunition had been shipped and transported in interstate and foreign commerce.

At the time that he possessed the firearm and ammunition, the defendant had been previously convicted of Discharge of a Firearm at an Occupied Vehicle, in violation of California Penal Code Section 246, on or about July 8, 1993, in the Superior Court of California, County of Fresno, Case Number 486174-6; Felony Spousal Abuse, in violation of California Penal Code Section 273.5, on or about October 16, 1997, in the Superior Court of California, County of Fresno, Case Number 581888-5; and, Felony Battery on a Peace Officer, in violation of California Penal Code Section 243(c), on or about December 10, 1989, in the Superior Court of California, County of Fresno, Case Number 615118-7, all crimes punishable by a term of imprisonment exceeding one year.

During the change of plea colloquy before Judge Robert E. Coyle, Petitioner was placed under oath. In pertinent part, the following occurred:

THE COURT: Mr. Rice, would you please set forth the factual basis upon which the defendant is pleading?

MR. RICE: Yes, Your Honor. The elements that the government would have to prove in this case would be the defendant knowingly possessed a firearm or ammunition that had been shipped or transported from one state to another; and second, at the time the defendant possessed the firearm or ammunition, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

To prove these elements the government would introduce evidence that on October the 23rd, 2001, in the City of Fresno in the State and Eastern District of California, the defendant knowingly possessed a firearm, to wit: A Jennings, model 38, .380 caliber semiautomatic pistol, and Winchester 38 caliber ammunition, in and affecting commerce, in that the firearm and ammunition had been shipped and transported in interstate or foreign commerce.

At the time that he possessed the firearm and ammunition, he had previously been convicted of discharging a firearm at an occupied vehicle and violating the California Penal Code Section 246 on or about July the 8th, 1993 in the Superior Court of California, County of Fresno, case number 486174-6; felony spousal abuse, in violation of California Penal Code Section 273.5, on or about October the 16th, 1997 in the Superior Court of California, County of Fresno, case number 581888-5; and felony battery on a peace officer, in violation of California Penal Code Section 243(c), on or about December 10th, 1998, in the Superior Court of California, County of Fresno, case number 615118-7, all crimes punishable by a term of imprisonment exceeding one year.

THE COURT: Mr. Ceja, you understand that the government would have to prove all of those things as set forth by Mr. Rice beyond a reasonable doubt?

THE DEFENDANT: Yes.

THE COURT: And remember that you're under oath. Do you agree with all those facts as set forth by Mr. Rice as to what you're pleading guilty to?

THE DEFENDANT: Yes.

THE COURT: Ms. Clerk, please accept the plea.

MR. CAPOZZI: And judge for the record, if I may first. The U.S. Attorney and I have entered into an agreement that would allow us - this case and this sentence is dependent upon the number of convictions in the state court. We have pulled those files in the state court and we are now in the process of filing writs to set aside those convictions. Indeed, if just one is set aside, the mandatory minimum is no longer 15 years. We'll go by the guidelines. And indeed, if all three are set aside, the case would be dismissed.

The government has agreed to allow us the opportunity to follow-up with those motions in State court and allow us to continue out the sentence to give us the time to get that done. I just want to say that for the record.

MR. RICE: That's correct. Basically I've agreed to give Mr. Capozzi the time. The only place that the priors can be litigated at all is in State court because they're State court convictions. And Mr. Capozzi thinks that he has a good faith claim to set aside one of those priors. He'll have to bring it in State court. It would affect the sentence in the event that one were crossed out. But that's all that we're agreeing.

MR. CAPOZZI: We're pleading guilty.

THE COURT: All right. I understand. I just want to be sure I understood or the record is clear as to what the understanding is. Maybe I misunderstood you, Mr. Capozzi. My understanding of what you said is that if all of these are set aside, this case would be dismissed.

MR. CAPOZZI: I think the government would agree with that.

MR. RICE: That's correct. If the State court were to find that these were not valid prior convictions and dismiss all those cases, then the underlying felonies would go away.

THE COURT: All right. That's fine. I want to make sure we're all on the same path.

MR. CAPOZZI: That's correct.

THE COURT: All right.

THE CLERK: Shall I take the plea?

MR. CAPOZZI: Yeah.

After entry of Petitioner's guilty plea, but before sentencing, Roger Nuttall was substituted as counsel of record for Petitioner.

On November 7, 2005, Mr. Nuttall, on behalf of Petitioner, filed a motion to withdraw Petitioner's guilty plea on the ground that Petitioner was factually innocent of violating Section 922(g)(1). (Doc. 46).*fn1 In relevant part, the motion to withdraw the guilty plea asserted that "Current Counsel's investigation has discovered facts which were apparently known to both of Defendant's prior counsel, but which were previously unsubmitted to the court." Attached to the motion to withdraw the guilty plea was the Declaration of Salvador Ceja:

1. I know that Everardo Silva Ceja did not have knowledge that the .380 Caliber Jennings handgun and bulletproof vest in question were in the Grey Convertible Mustang on October 23, 2001;

2. Everardo and I (and others) periodically borrowed the Grey Convertible Mustang from its owner, for trips and special occasions;

3. When I borrowed the Mustang, I would not perform an inventory search of the vehicle for weapons and/or other illegal items;

4. On October 22, 2001, the night before Everardo's arrest, I had borrowed said Mustang, to entertain an acquaintance of mine;

5. Said items belonged to this acquaintance of mine, and were placed in said vehicle the night before, in my presence, by said acquaintance, and without Everardo's knowledge;

6. Said other individual and I were the only two people who knew that the handgun and vest were in the Grey Convertible Mustang, and we did not disclose this information to any other person, including Everardo.

7. I am willing to meet with the Government to disclose the identity of this acquaintance, who hid handgun and vest in the Mustang, and to whom said items belonged.

8. I told this information to both of Everardo's prior attorneys, Thomas ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.