The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER GRANTING PETITIONER'S MOTION TO FILE MOTION FOR HABEAS RELIEF OUT OF TIME AND DISMISSING PETITIONER'S MOTION TO CORRECT, AMEND OR VACATE HIS SENTENCE AND CLOSING THE CASE
In this case, petitioner Frederico Parra ("Petitioner") seeks relief under 28 U.S.C. section 2255 from the sentence of 120 months that was imposed by this court on April 2, 2006, following conviction by plea of guilty to one count of possession with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). In a related motion, Petitioner seeks leave to file his motion pursuant to section 2255 out of time on the ground the original petition was timely delivered to the proper authorities but the petition was subsequently lost or mis-delivered. For the reasons that follow, the court will grant the motion to file out of time and will deny the motion for relief pursuant to section 2255.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 14, 2005, Fresno Police executed a warranted search at a local residence. Based on information gathered during the search, the police placed the residence under surveillance with the expectation that a large amount of methamphetamine would be delivered to the residence. Fresno police observed a car matching the description of the anticipated delivery vehicle pull up to the residence at about 2:20 p.m. The car was being driven by Petitioner. As police officers approached the car they observed Petitioner toss a box out of the car passenger door. The box was recovered and found to contain approximately one-half pound of suspected methamphetamine. Chemical analysis of the contents of the box later determined that the box contained 180 grams of actual methamphetamine.
Defendant was arrested and charged in a single-count indictment with possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §841(a)(1). On April 3, 2006, Petitioner entered a plea of guilty to the single count pursuant to a negotiated plea agreement. In the plea agreement, Petitioner admitted the elements of the offense and admitted he possessed fifty or more grams of actual methamphetamine with the intent to distribute. Petitioner waived all rights to contest his plea of guilty and waived the right to appeal his sentence. The plea agreement does not appear to waive the right to collaterally attack the sentence pursuant to section 2255. The government agreed to a three-level reduction in offense level for acceptance of responsibility and agreed to recommend Petitioner be sentenced at the bottom of the applicable sentencing range.
A Presentence Investigation Report ("PIR") prepared by Probation Department calculated a base offense level of 34 and a criminal history category of I. Pursuant to the plea agreement, the offense level was reduced to 31 for acceptance of responsibility. The PIR noted that, in the absence of any relief under United States Sentencing Guideline 5C1.2 and 18 U.S.C. § 3553(f)(1) - (5) ("safety valve reduction") the statutory 120-month minimum sentence would apply. If the safety valve provisions were found to apply, the PIR noted Petitioner would be eligible for a sentence of 108 months. At the sentencing hearing held June 19, 2006, the government argued against application of safety valve relief on the ground Petitioner had been less than forthcoming with information concerning the source of the methamphetamine that was recovered. Petitioner was sentenced to the statutory minimum of 120 months.
Judgment was entered on June 23, 2006. A notice of appeal was filed on June 27, 2006. The appeal was voluntarily dismissed on April 16, 2007. The instant motion to vacate set aside or correct the sentence was filed untimely in this court on March 10, 2009. In his motion to allow the filing out of time, Petitioner alleges that he placed the instant motion in the custody of officials at the correctional facility in Phoenix, Arizona where Petitioner was then housed. Pursuant to an inquiry by plaintiff dated August 11, 2008, the court notified Petitioner that no 2255 motion from Petitioner had been received by the court. Petitioner's motion to file 2255 motion out of time is accompanied by evidence to show that Petitioner's 2255 motion was delivered to the custody of correctional officers on May 28, 2007.
Section 2255 provides, in pertinent part: "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 ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (internal quotations omitted), cert. denied, 520 U.S. 1269, 117 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981).
I. Motion to File Out of Time
As Petitioner correctly points out, where a prisoner acting pro se seeks to file a pleading with the district court, the pleading is deemed filed when the pleading is delivered "to the prison authorities for forwarding to the court clerk." Houston v. Lack, 487 U.S. 266, 276 (1988). This "prisoner mailbox rule" applies to petitions for habeas relief whether or not those petitions are actually received by the district court. Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001). All that is required, in addition to the timely delivery of the pleading into the custody of prison ...