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 THE COURT TO ENTER JUDGMENT FOR RESPONDENT
On May 31, 2009, pursuant to the "mailbox rule," Petitioner Glafiro Gonzalez filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner, represented by Gary Huss, was convicted by jury trial of conspiracy to manufacture and distribute methamphetamine and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 846(a)(1) and three counts of distribution of methamphetamine and aiding and abetting in violation of Section 841(a)(1) and (b)(1)(A). Petitioner was sentenced to a 300 month concurrent term of imprisonment on each count of conviction and a 96 month term of supervised release. Petitioner's conviction and sentence were affirmed on appeal, United States v. Gonzalez, 2007 WL 1185692 (9th Cir.2007)
A. Timeliness of Section 2255 Motion
The threshold issue is the timeliness of Petitioner's Section 2255 motion. Section 2255 provides that a one-year period of limitation applies to a Section 2255 motion, which limitation period runs from the latest of:
(1) the date on which the judgment of conviction became 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 the exercise of due diligence.
Applicable here in Section 2255(1).
The one-year limitation period for a federal prisoner commences when the availability of appeal has exhausted and the time for a petition for certiorari has elapsed or a petition for certiorari finally denied. See United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.2000), citing Griffith v. Kentucky, 479 U.S. 314 (1987). Petitioner's conviction was affirmed on appeal by judgment filed on April 20, 2007. The mandate issued on May 14, 2007.
Under Supreme Court Rule 30-1, calculation of any period contained in the rules shall exclude the day on which the triggering event occurs and include the last day of the period, unless it is a Saturday, Sunday or legal holiday. Petitioner's conviction became final 90 days after the mandate issued, i.e., August 13, 2007. According to the Ninth Circuit docket, Petitioner served a request for leave of court to file a motion for rehearing and suggestion for rehearing en banc on August 24, 2007, which request was docketed on August 30, 2007. By Order filed on February 4, 2008, Petitioner's request was construed as a motion to recall the mandate and was denied. On May 6, 2008, Petitioner filed a petition for certiorari in the United States Supreme Court. The petition for certiorari was denied by the Supreme Court on June 2, 2008.*fn1 Petitioner's Section 2255 motion was filed on May 31, 2009.
Petitioner's request to the Ninth Circuit for leave to file a motion for rehearing appears to have been untimely. Pursuant to Rule 40(a)(1), Federal Rules of Appellate Procedure, "[u]nless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment." Supreme Court Rule 13-3 provides:
The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate ... But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties ... runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.
Unless considered by the Court of Appeals, an untimely petition for rehearing does not toll the time within which to file a petition for writ of certiorari. See United States v. Close, 336 F.3d 1283, 1285-1286 (11th Cir.2003); United States v. Wall, 456 F.3d 316, 318-320 (3rd Cir.2004); United States v. Dass, 2006 WL 2045873 (N.D.Okla.2006). Here, it appears that Petitioner's conviction was final for purposes of the one-year limitation period before he served his motion for leave to file a petition for rehearing on August 24, 2007 and that his Section 2255 motion is untimely.
Even if Petitioner's Section 2255 motion is untimely, Petitioner is not entitled to relief.
Petitioner contends that he is entitled to relief because:
(1) he was improperly sentenced under 21 U.S.C. § 841(b)(1)(A) for manufacture of methamphetamine, a Schedule II controlled substance, and should have been sentenced pursuant to 21 U.S.C. § 841(b)(1)(D), for a Schedule III controlled substance; (2) the 300 month sentence is illegal pursuant to Edwards v. United States, 523 U.S. 511 (1998); (3) his prior conviction by jury trial in the Tulare County Superior Court, Case No. 99-41887, on July 15, 1999, of transporting a controlled substance in violation of California Health & Safety Code § 11379(a), with a special allegation prohibiting probation for excess weight of methamphetamine, does not qualify as a prior predicate controlled substance offense for purposes of U.S.S.G. § 4B1.1 or for a mandatory term of imprisonment pursuant to 21 U.S.C. § 851; (4) Petitioner was not a member of the conspiracy, but was in a buyer-seller relationship; and (5) Petitioner was denied the effective assistance of trial and appellate counsel:
[N]o reasonable attorney would have failed to research would have failed to have researched the facts and law of the case and failed to have argued these positions to success at trial and on Direct Appeal. It was not reasonable trial strategy when Counsel informed Petitioner that he 'Saw holes in the Government's case ... so let's take it to trial' in the face of overwhelming evidence against his client. No reasonable attorney would have advised his client, after the jury returned a guilty verdict, to admit guilt to the probation officer preparing his presentence report stating: 'If you do admit guilt to the probation officer you will still receive a three-point reduction in offense level for acceptance of responsibility.' That is legally impossible. "If a criminal defendant could have raised a claim of error on direct appeal but nonetheless failed to do so, he must demonstrate both cause excusing his procedural default, and actual prejudice resulting from the claim of error." United States v. Jackson, 988 F.2d 941, 945 (9th Cir.1993). Generally, to demonstrate "cause" for procedural default, a petitioner must show that "some objective factor external to the defense" impeded his adherence to the procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, if the record shows that an appellate counsel's performance fell below the standard of competency of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984), or that he was denied representation by counsel on appeal altogether, he has demonstrated cause for his procedural default. United States v. Skurdal, 341 F.3d 921, 925 (9th Cir.2003).
In Skurdal, the Ninth Circuit addressed Skurdal's contention that his counsel Bevolden's failure to file a proper Anders brief with his motion to withdraw constituted ineffective assistance of appellate counsel. Bevolden filed a timely notice of appeal on Skurdal's behalf on November 6, 1991. He did not file an opening brief. Instead, he filed a motion on June 19, 1992 requesting permission to withdraw as Skurdal's attorney. In his motion to withdraw, Bevolden stated that "to the extent he understands Skurdal's issues, [he could not] in good faith, nor in compliance with Rule 3.1 of the Rules of Professional Conduct, assert those issues on appeal for the reasons that Curtis L. Bevolden believes those issues to be frivolous." Bevolden also filed a three-page affidavit in which he outlined the history of his relationship with Skurdal. Bevolden explained that "Skurdal was allowed to proceed pro se or pro per for a time but when Skurdal insisted on proceeding with his unique legal philosophy the District Court re-appointed Curtis L. Bevolden as his counsel." Bevolden did not notify the Ninth Circuit in his motion to withdraw as Skurdal's counsel on his direct appeal, or in the supporting affidavit, that the district court had found that Skurdal lacked the capacity to make a knowing and intelligent waiver of counsel.
Further, Bevolden did not submit a brief that complied with the requirements set forth in Anders v. California, 386 U.S. 738 (1967). On September 18, 1992, the Ninth Circuit issued a one-paragraph order which granted Bevolden's motion to withdraw as Skurdal's counsel and advised Skurdal that he had twenty-one days to inform the court whether he desired to proceed pro se on appeal or to have new counsel appointed to represent him. Skurdal filed a motion to proceed in propria persona. The clerk of the court issued an order stating that Skurdal had informed the court that he intends to represent himself. Before granting Skurdal's motion to proceed pro se in prosecuting the appeal, the Ninth Circuit made no inquiry to determine whether Skurdal's waiver of appellate counsel was knowing and intelligent. In an unpublished memorandum, the Ninth Circuit affirmed Skurdal's conviction. 341 F.3d at 924. Skurdal then filed a Section 2255 motion, which the District Court denied, holding that all of the issues were procedurally barred because he had failed to raise them on direct appeal and had not demonstrated cause and prejudice. The Ninth Circuit reversed the District Court, holding:
[T]he procedure an attorney must follow in order to withdraw from representing an indigent defendant convicted in federal court, because counsel believes the appeal is wholly without merit, is governed by Anders and the law of this Circuit. In this Circuit, we require an attorney who wishes to withdraw from representing a person on appeal to follow the procedures outlined in Anders, 386 U.S. at 744 ..., United States v. Griffy, 895 F.2d 561, 562 (9th Cir.1990)(per curiam) ....
In order '"to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeal to the best of their ability,"' ..., we held in Griffy that 'appointed counsel who concludes after a conscientious review of the record that the appeal is wholly without merit ... must "so advise the court and request permission to withdraw."' Griffy, 895 F.2d at 562 ... Defendant's counsel must also, however, 'submit a brief on behalf of the indigent defendant presenting the strongest arguments in favor of [his or her] client supported by citations to the record and to applicable legal authority." Id. at 563. If appellate counsel fails to comply with the requirements of Griffy and Anders, he or she has 'deprived the court of the assistance of an advocate in its own review of the cold record on appeal.' Penson, 488 U.S. at 82 ... If an attorney fails to give any assistance to his client, he has not provided effective assistance of counsel.
The Ninth Circuit's docket for Petitioner's appeal establishes that Mr. Huss filed an Anders brief. The Anders brief is reported at 2007 WL 4864581 (9th Cir.). After describing the proceedings in the District Court and setting forth the facts supporting Petitioner's conviction, the brief states:
Pursuant to the opinion of the Supreme Court in Anders v. California, 386 U.S. 738 (1967), counsel requests that this court independently review the entire record on appeal in this case. Appellant has been advised by present counsel of his right to file a supplemental brief in this court within thirty days of the date this brief is filed. Appellant has been advised that in the supplemental brief he may bring to the court's attention any issues he believes deserve review. Appellant has further been advised that he may ask the court to relieve present counsel, that present counsel will forward appellant's copy of the record on appeal for the purpose of preparing a supplemental ...