The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RE: MOTIONS TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE PURSUANT TO 28 U.S.C. §2255 AND APPLICATION TO PROCEED IN FORMA PAUPERIS
On June 5, 2000, Petitioner Keith Seriales was indicted on two counts: (1) conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§846 and 841(a)(1) and (2) possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2. Doc. 7.*fn1 Petitioner was represented by Stephen Mensel. Doc. 5. Petitioner was arrested and then released on bail. Petitioner was then arrested on January 27, 2001 on a state charge of murder. On April 26, 2004, the parties lodged a plea agreement with the court which provided for Petitioner's guilty plea to the first count in return for the prosecution's dismissal of the second count. Doc. 83. At a hearing on May 3, 2004, Petitioner plead guilty to the first count. Doc. 84. A draft presentence investigation report was prepared by the U.S. Probation Office and made available June 7, 2004. At a hearing on September 7, 2004, Petitioner was sentenced to 120 months imprisonment with 60 months supervised release and the prosecution dismissed the second count of the indictment. Doc. 96. Judgment was issued September 15, 2004. Doc. 98. No direct appeal was filed. Petitioner filed his first Section 2255 habeas petition on May 3, 2006. Doc. 99. Petitioner filed a second Section 2255 habeas petition on August 15, 2008 (erroneously titled a petition under 28 U.S.C. § 2254). Doc. 102. He also filed a motion to proceed in forma pauperis. Doc. 103.
Title 28 U.S.C. §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." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). 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 petitioner'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), citations omitted. 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).
The first petition alleges (1) error in failing to run his federal sentence concurrently with a state sentence on murder charges, (2) ineffective assistance of counsel, (3) sentencing error per United States v. Booker, 543 U.S. 220 (2005), and (4) an invalid guilty plea due to misunderstanding the consequences of the plea agreement. Doc. 99. The second petition reiterates issues one, two, and four. Doc. 102. However, Petitioner is time barred from filing a habeas petition based on these arguments. Habeas relief under Section 2255 is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996:
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 ...