ORDER RE: MOTION TO VACATE, SET ASIDE, OR
CORRECT THE SENTENCE PURSUANT TO 28 U.S.C. §2255
On April 6, 2006, Petitioner Fernando Gil was indicted on five counts of 21 U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance. Doc. 1. He was represented by Victor Chavez. On October 24, 2008, Petitioner plead guilty to one count of 21 U.S.C. § 841(a)(1). Doc. 46. It is unclear if there was a plea agreement between Petitioner and the U.S. Attorney's Office. The other four counts were later dismissed. Petitioner was sentenced on December 22, 2008 to 120 months imprisonment. Doc. 50.
Petitioner now files a 28 U.S.C. § 2255 motion to have his sentence reduced. Doc. 52. Petitioner has not filed a direct appeal. This is his first habeas petition.
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).
Petitioner seeks a reduction of his sentence. He is a Mexican citizen who is scheduled to be automatically deported pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43). Due to this status, Petitioner is not eligible for certain early release programs. Petitioner argues that due to this disparity, the sentence he received is a violation of his due process and his equal protection rights. He seeks a reduction of his sentence (through a downward departure from the sentencing guidelines) to correct this alleged sentencing error. Additionally, Petitioner argues that his attorney was ineffective in that he failed to raise this circumstance during plea negotiations and sentencing.
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 ...