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United States v. Hernandez

May 1, 2009

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
v.
MARIA CONCHITA HERNANDEZ, DEFENDANT/PETITIONER.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

On December 14, 2007, Petitioner Maria Conchita Hernandez ("Petitioner"), a federal prisoner proceeding pro se, filed a Motion to vacate, set aside, or correct her sentence pursuant to 28 U.S. § 2255. [Doc. No. 88.] After consideration of the Petitioner's Motion, Respondent's Response and Opposition, and the all the supporting documents submitted, this Court DENIES the motion to vacate, set aside, or correct the sentence.

Factual Background

On or around May 24, 1996, Petitioner and her common-law-husband, Socorro J. Cabrera-Borja, drove a 1989 Nissan Sentra from Santa Ana, California to Tijuana, Mexico to pick up a 1988 GMC van. [Doc. No. 14.] Upon their arrival, Petitioner's husband entered the 1988 GMC van, which contained approximately 39.05 pounds of ampehtamine, 15.05 pounds of marijuana and 5.52 pounds of heroin. [Id.] Afterwards, Petitioner Hernandez drove the 1989 Nissan Sentra back to the United States in advance of the 1988 GMC van. [Id.] Meanwhile, Petitioner's husband drove the 1988 GMC van containing the drugs into the United States at which point they were detained by border patrol officers. [Id.]

Procedural Background

On August 28, 1996, an eight count superceding indictment was filed charging Petitioner with Conspiracy to Import Amphetamine, Marijuana, and Heroin, in violation of 21 U.S.C. §§ 952, 960, and 963; Aiding and Abetting Importation of Amphetamine, Marijuana, and Heroin (3 separate counts), in violation of 21 U.S.C. §§ 952 and 960, and 18 U.S.C. §2; Conspiracy to Possess Amphetamine, Marijuana, and Heroin, in violation of 21 U.S.C. §§ 846, and 841(a)(1)960; and Aiding and Abetting Possession of Amphetamine, Marijuana, and Heroin (3 separate counts), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The statement of overt acts in the indictment included specific drug quantities:

39.05 lbs of amphetamine, 15.05 lbs of marijuana, and 5.52 lbs of heroin.

Petitioner's common-law husband and co-defendant, Socorro J. Cabrera-Borja, pled guilty on December 2, 1996. He was sentenced to 151 months in custody on March 17, 1997.

Petitioner waived her right to a jury trial. [Doc. No. 40.] Following a bench trial, Petitioner was convicted of all eight counts in the superceding indictment on December 4, 1996. On March 24, 2007, this Court sentenced Petitioner to 151 months for Counts 1, 2, 4, 5, 6, and 8, all to run concurrently, in addition to 60 months concurrent for Counts 3 and 7. [Doc. No. 60.] At that time, the Court advised Petitioner of her right to appeal "within ten court days of the sentencing date." [Doc. No. 91.] Petitioner filed an appeal on August 12, 1998 (doc. no. 63) which the 9th Circuit denied as untimely on September 11, 1998 [Doc. No. 74].

Petitioner then filed this present motion on Dec 14, 2007 [doc. no. 88] contesting her conviction on the following four grounds: (1) Ineffective Assistance of Counsel, (2) Violation of Right to Appeal, (3) Violation of Plea Agreement, and (4) Violation of Constitutional Rights.

Legal Standard 28 U.S.C. § 2255- Federal Habeas Corpus Petition

I. General Standard

Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "A prisoner in custody under sentence of a court . . . claiming . . . that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. ยง 2255. The AEDPA applies only to habeas petitions that were filed after its effective date (April 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Motions to contest the legality of a sentence must generally be filed under section 2255 in the court in which the petitioner was sentenced. See Hernandez ...


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