The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: (1) GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENT OF AUTHORITY; [Doc. No. 453] (2) GRANTING MOTION FOR LEAVE TO FILE CORRECTED SUPPLEMENT; [Doc. No. 455] (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 434]
Before this Court is Petitioner William F. McCray, Jr.'s Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. The Court has considered the motion; Respondent's opposition and supplemental response; Petitioner's reply and corrected supplemental authority; and all additional supporting documents submitted by the parties. For the following reasons, the Court DENIES McCray's motion and dismisses the case with prejudice.
On August 20, 2000, a grand jury indicted Petitioner on multiple counts of mail fraud, wire fraud, perjury, money laundering, conspiracy, and filing false tax returns. [Doc. No. 1.] A jury convicted Petitioner on all counts on November 14, 2003. [Doc. No. 273.] On August 29, 2005, the Court sentenced Petitioner to 211 months in custody, a 3-year term of supervised release, and payment of restitution in the amount of $12,228,170.12.*fn1 In apportioning the sentence, the Court imposed 211 months on Counts 23-24; 120 months on Counts 25-27; 60 months on Counts 2-5, 7-11, 13-22, 28; and 36 months on Counts 29 and 31. The Court ordered all counts to be served concurrent with one another and with the sentence Petitioner was already serving in criminal case No. 02CR0332-L.*fn2 [Doc. No. 374.]
Petitioner appealed. [Doc. No. 377.] On November 21, 2007, the Ninth Circuit affirmed Petitioner's conviction and sentence. (Resp't P. & A. (RPA), Ex. 4.) On February 4, 2008, the Ninth Circuit denied Petitioner's Petition for Rehearing. [Doc. No. 404.] Petitioner appealed to the United States Supreme Court, which denied his Petition for Writ of Certiorari on March 24, 2008. (Pet. 4.)
On March 23, 2009, Petitioner moved the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 434.] Petitioner filed a Supplement to his Petition on June 5, 2009. [Doc. No. 436.] Respondent filed a Response in Opposition on August 19, 2009. [Doc. No. 441.] On October 6, 2009, Petitioner filed a Reply. [Doc. No. 446.] On November 5, 2009, Respondent filed a Supplemental Memorandum in Response and Opposition, in order to discuss the applicability of the Ninth Circuit's decision in United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009). [Doc. No. 447.] Thereafter, Petitioner filed a Motion for Leave to File a Supplement of Authority [Doc. No. 453] and a Motion for Leave to File a Corrected Supplement [Doc. No. 455].
The Court now GRANTS these motions and will consider Petitioner's Supplement and Corrected Supplement.
A sentencing court is authorized to "vacate, set aside or correct the sentence" of a federal prisoner if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783 (1979). Additionally, the scope of collateral attack is much more limited than on direct appeal. United States v. Addonizio, 442 U.S. 178, 184-85 (1979). Further, if a petitioner has procedurally defaulted by not raising a claim on direct review, he will be barred from raising it on collateral review unless he can meet one of the exceptions excusing procedural default, such as cause and prejudice or a fundamental miscarriage of justice. See Bousley v. United States, 523 U.S. 614, 623-24 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982).
If the record clearly indicates that a petitioner does not have a claim or that a petitioner has asserted "no more than allegations unsupported by the facts or refuted by the record," a district court can deny a § 2255 motion without holding an evidentiary hearing. See United States v. Quan, 789 F.2d 711 (715 (9th Cir. 1986).
Petitioner argues the Supreme Court's plurality decision in United States v. Santos, 128 S.Ct. 2020 (2008), requires the Court to vacate his conviction and sentence on Counts 23-27. (Pet. 10.) In Santos, a divided Court examined the definition of "proceeds" under the federal money laundering statute, 18 U.S.C. § 1956, ultimately vacating Santos' money laundering convictions because they did not involve profits of the enterprise. 128 S.Ct. at 2031. Petitioner argues that the funds involved in his money laundering transactions were not "profits" of his fraud scheme, as required by Santos, and thus do not support his money laundering convictions. (Pet. 3.)
Respondent argues that Petitioner has procedurally defaulted his claims by not raising them earlier. (RPA 12.) Petitioner did not previously raise this claim regarding "profits" with respect to his money laundering convictions either before this Court or on appeal to the Ninth Circuit or the U.S. Supreme Court. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual ...