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United States of America v. Leofredo Lopez

April 29, 2011

UNITED STATES OF AMERICA, RESPONDENT,
v.
LEOFREDO LOPEZ,
PETITIONER.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner Leofredo Lopez has filed a petition for writ of error audita querela with this court pursuant to 28 U.S.C. § 1651 and 18 U.S.C. § 3231.*fn1 Therein, petitioner challenges his 1998 conviction and sentence in this court for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and 841(a)(1) and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The challenged judgment of conviction was entered in this court on March 27, 1998. (Doc. No. 92.) On May 28, 1999, the judgment was affirmed by the U.S. Court of Appeals for the Ninth Circuit. (Doc. No. 109.)

In his petition for writ of error audita querela, petitioner contends that although the judgment of conviction was correct when entered, it is now "infirmed" in light of the U.S. Supreme Court's subsequent decisions in United States v. Booker, 543 U.S. 220 (2005), Blakely v. Washington, 542 U.S. 296 (2004), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United States, 526 U.S. 227 (1999).*fn2 (Petition (Doc. No. 158) at 1.) Specifically, petitioner asserts that he is presenting the following issues:

1. Whether Movant's sentence and conviction is unconstitutional under Apprendi.

2. Congress's intended "sentencing factors", the treatment of drug type and quantity under §841(b), is unconstitutional under the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 566 (2000).

3. Congress intended for drug type and quantity under §841(b) to be sentencing factors provable to a judge by only a preponderance of the evidence, the courts cannot now judicially rewrite the statute to bring it into compliance with Apprendi.

4. Whether the District Court's jurisdiction lost the power to sustain the subject matter jurisdiction of the presentencing report investigation (PSIR), which contains constitutional errors based on recent Supreme Court's line of rulings requiring resentencing.

5. Whether the appellant can assert an effective or counsel claim, in urging appellant to plead guilty thereby foreclosing attack on antecedent constitutional violations.

6. Whether petitioner has standing to raise the defense of outrageous government conduct.

(Pet. at 4.)

I. Procedural History

On May 22, 2000, petitioner filed with this court a motion to vacate, set aside and correct his 1998 sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 110.) On June 2, 2000, the court ordered the respondent to file an answer and for petitioner to file a traverse. Respondent's answer to the § 2255 motion was filed on June 28, 2000. However, instead of filing a traverse, petitioner filed a motion to expand the record and a motion to amend his § 2255 motion. (Docs. No. 114 & 115.) In his motion to amend, petitioner requested that the court proceed with his Apprendi claim but dismiss with prejudice all of his other claims. (See Doc. No. 119 at 1.) However, because petitioner had failed to include an Apprendi claim in his § 2255 motion and had failed to serve the motion to amend on respondent, the court ordered him to file a new motion for leave to amend his § 2255 motion along with a proposed amended § 2255 motion. (Id. at 1-2.) Petitioner was provided several extensions of time to comply with the court's order. (Docs. No. 123, 125 & 127.) On November 14, 2002, petitioner finally filed an amended § 2255 motion in which he claimed that his trial counsel had provided him ineffective assistance. (Doc. No. 128.) The court ordered respondent to file a response to the amended motion, and for petitioner to file his traverse. (Doc. No. 130.) On May 2, 2003, respondent filed an answer (Doc. No. 132) and on June 12, 2003, petitioner filed his traverse (Doc. No. 135).*fn3

On May 16, 2007 the undersigned issued findings and recommendations recommending that both petitioner's amended § 2255 motion to vacate, set aside, or correct the sentence be denied and his motion to reinstate his Apprendi claim be denied. (Doc. No. 155.) On July 6, 2007, the assigned District Judge adopted those findings and recommendations, denied the amended § 2255 motion and denied petitioner's motion to reinstate his Apprendi claim. (Doc. No. 156.)

Finally, the court's docket reflects that on April 12, 2005, the Ninth Circuit Court of Appeals denied petitioner application to file a second or successive ยง 2255 motion because petitioner had failed to make the required prima facie showing of newly discovered evidence or a ...


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