FINDINGS AND RECOMMENDATIONS
Movant has filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, alleging that this sentence was imposed in violation of his Sixth Amendment rights as defined in Booker v. United States, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004).
Movant was charged with conspiring with several others to manufacture methamphetamine with the intent to distribute, 21 U.S.C. § 846 (count one); the manufacture of methamphetamine with the intent to distribute it, 21 U.S.C. § 841(a)(1) (count four); two counts of possession of methamphetamine with the intent to distribute it, 21 U.S.C. § 841(a)(1) (counts five and seven); being armed during a drug trafficking offense, 18 U.S.C. § 924(c)(1) (counts six and eight); and possession of a firearm by an ex-felon, 18 U.S.C. § 922 (count ten). Docket No. 43. Before trial, the government filed an information, charging movant with his prior drug convictions under the procedure authorized by 21 U.S.C. § 851. See Docket No. 140; see also Docket No. 236 (records re: prior convictions).
The locus of the conspiracy to manufacture methamphetamine was a lab maintained on Grand Island Road in Walnut Grove. RT 1405. Movant was already in jail when officers searched the property on July 20, 1994, but he was tied to the lab in several ways.
RT 257. First, he rented a storage unit in Rio Vista, which contained materials associated with the manufacture of methamphetamine and which was visited by his co-defendants. See, e.g., RT 180-182, 186, 1034-1036, 1111. Second, during the search of movant's house and car, officers found approximately 887 grams of methamphetamine in two packages, $10,940 in cash, and a firearm. RT 203, 225, 231, 1394. Third, after Mendoza, another of the conspirators, had sold a pound of methamphetamine to an undercover police officer, other officers followed Mendoza to Galicia's house at 1714 27th Street in Sacramento. RT 306.
Movant was convicted on all the counts alleged against him in the indictment. Docket No. 192. Movant was sentenced to concurrent terms of life on counts one, four, five and seven; a term of one hundred and twenty months on count six, to be served consecutively to the sentences in counts one, four, five and seven; a term of two hundred and forty months on count eight, to be served consecutively to that imposed on count six; and a term of one hundred and twenty months on count ten, to be served concurrently, for a total term of life plus three hundred and sixty months. Docket No. 331. The transcript of the sentencing hearing has, it appears, been lost. The government has submitted the declaration of Dale Kitching, the Special Assistant United States Attorney who prosecuted the case, who avers that movant's life sentence was based on his prior convictions; movant does not dispute this characterization. See Decl. of Dale E. Kitching (docket no. 500-2); Movant's Response Motion (docket no. 502).
Movant appealed his conviction and sentence, arguing that the district court lacked jurisdiction because of irregularities in the appointment of Special Assistant United States Attorney Kitching; that the search of his car was illegal; that the evidence was insufficient to connect him to the conspiracy; and that his mandatory life sentence constituted cruel and unusual punishment. The Ninth Circuit affirmed petitioner's conviction. United States v. Galicia, 1998 WL 856490 (9th Cir. Nov. 19, 1998). His petition for a writ of certiorari was denied on June 7, 1999. Galicia v. United States, 526 U.S. 1165 (1999).
On December 7, 2005, movant filed the instant motion to vacate his sentence, arguing that the life sentences were based on drug quantities not charged in the indictment and that he is actually innocent of the sentence. The government argues the motion is barred by the statute of limitations, that movant has procedurally defaulted his claims and that any error is harmless, in any event.
II. The Statute of Limitations
Section 2255 provides in part: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...