ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE WITH LEAVE TO AMEND (Doc. 106)
Petitioner Daniel Salas ("Petitioner") has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For reasons discussed below, the motion shall be denied with leave given to Petitioner to amend the motion in accordance with the standards discussed below.
FACTUAL AND PROCEDURAL HISTORY
Petitioner was indicted August 10, 2006, on charges of conspiracy to distribute and to possess with the intent to distribute methamphetamine, and possession of methamphetamine with intent to distribute. Petitioner signed a plea agreement in April 2007, pleading guilty to the conspiracy charge in exchange for the dismissal of the second charge and the government's recommendation of a sentence at the bottom of the applicable guideline range or a sentence of 63 months, whichever was greater. Doc. 69 at 4:25-26. The plea agreement stipulated that "[t]he defendant ... waives his right to challenge his conviction, sentence or the manner in which it was determined in any post-conviction attack, including but not limited to a motion brought under [28 U.S.C. §§] 2241 or 2255." Doc. 69 at 4:9-12.
The government also agreed, as a part of the plea deal, to recommend a 2-level reduction in Petitioner's offense level pursuant to U.S, Sentencing Guideline § 2D1.1(c)(6) provided that the probation office agreed that Petitioner met the criteria set forth in 18 U.S.C. § 3553(f)(1)--(5) and Petitioner had satisfied § 3553(f)(5) by completely and truthfully informing the government of the circumstances surrounding his offense. Doc. 69 at 4:47--5:6. Defendants who meet the criteria under § 3553(f)(1)--(5) would also qualify for the "Safety Valve" provision under United States Sentencing Guideline § 5C1.2. The Safety Valve, when it applies, mandates that the defendant's sentence be based upon the Sentencing Guidelines, rather than the statutory guidelines for the crime involved. USSG § 5C1.2(a). The Sentencing Guidelines in these cases generally produce a sentence lower than the minimum under the statutory guidelines.
After the United States Probation Office submitted its presentence report, Petitioner's attorney submitted a sentencing memorandum, which argued that Petitioner met the criteria for the Safety Valve because he did not have more than one criminal history point under the sentencing guidelines, did not use violence or possess a firearm, played a minor role in the crime, and would be debriefed by the government in order to meet § 3553(f)(5) by the time of sentencing.
Petitioner was sentenced on September 10, 2007, to 120 months imprisonment - the minimum sentence under the statutory guidelines. Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 on August 31, 2011. In the motion, Petitioner challenges his sentence on the grounds that the Safety Valve should have applied and argues that his counsel was ineffective in assisting him in the plea agreement, other steps of the proceedings, and in challenging the ultimate sentence. To the extent the petition violates the one-year limitation on § 2255 motions, Petitioner also argues for equitable tolling of the limitation.
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 ... or that the sentence was in excess of the maximum authorized by law ... may move the court which imposed the sentence to vacate, set aside or correct the sentence."
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). In determining whether to grant a hearing on a § 2255 motion, "[t]he standard essentially is whether a movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). The motion may be summarily dismissed only where the petitioner's allegations, as viewed against the record, do not give rise to a claim for relief or are "palpably incredible or patently frivolous." United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (quoting Schaflander, 743 F.2d at 717). The court may summarily dismiss a motion that states only bald legal conclusions without supporting factual allegations, or it may direct the petitioner to amend his motion to provide clarifying factual support. See Sanders v. United States, 371 U.S. 1, 19 (1963).
1. Limitation period and equitable tolling: Subsection (f) of § 2255 imposes a one-year period of limitation on motions made under the section. The period of limitation typically begins to run from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1); Dodd v. United States, 545 U.S. 353, 357 (2005). Final judgment was entered against Petitioner on September 10, 2007. Petitioner does not argue that a date other than that of final judgment should apply under § 2255(f). Petitioner filed the instant motion August 31, 2011, nearly four years after final judgment was entered in his case.
Equitable tolling of the period of limitation is allowed where (1) petitioner has been diligently pursuing his rights; and (2) some extraordinary circumstance stood in the petitioner's way. United States v. Aguirre-Ganceda, 592 F.3d 1043 (9th Cir. 2010).
Petitioner argues that extraordinary circumstances hindered him because "not only did appellate fail to file, but was deficient in failing to advise Petitioner about his legal options, including a Section 2255 Motion." In Holland v. Florida, the Supreme Court found that an attorney's failure to file a federal habeas petition despite his client's many requests to do so, and the attorney's failure to communicate with his client despite letters and phone calls seeking information could have constituted an extraordinary circumstance for purposes of equitable tolling. 130 S. Ct. 2549, 2564-65 (2010). In United States v. Buckles, however, the Ninth Circuit rejected equitable tolling where an attorney failed to file a requested motion relating to the § 2255 limitation period and ignored repeated attempts at communication because the petitioner failed to allege facts that would support the assertion that the attorney was the cause of the petitioner's untimely § 2255 motion. 647 F.3d 883, 889-90 (2011). Here, Petitioner does not make clear who failed to file what on Petitioner's behalf, and unlike in Holland, Petitioner does not allege that he requested that anything be filed on his behalf. ...