The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255
On October 5, 2012, Cresencio Rochez-Solano ("Petitioner"), proceeding
pro se, filed a petition to vacate, set aside, or correct his sentence
("Petition") pursuant to 28 U.S.C. § 2255. (Doc. No. 47.)*fn1
Petitioner seeks habeas relief on the grounds that he was
denied effective assistance of counsel in violation of his Sixth
Amendment rights during his and sentencing hearings. (Doc. No. 47 at
4-5.) On December 19, 2012, Respondent filed a response in opposition.
(Doc. No. 53.) Petitioner amended his Petition on January 17, 2013,
and on February 19, 2013, Respondent filed an amended opposition.
(Doc. Nos. 56, 58.) For the reasons set forth below, the Court DENIES
On September 23, 2009, a federal grand jury charged Petitioner with one-count of Attempted Entry into the United States after Deportation, in violation of 8 U.S.C. § 1326. (Doc. No. 12.) On April 1, 2010, Petitioner pled guilty pursuant to a written plea agreement in which he admitted that he had attempted to re-enter the United States despite his illegal alien status. (Doc. No. 31; Doc. No. 53, Ex. 2 at 11.) His plea agreement also contained a waiver of his right to appeal or collaterally attack his conviction. (Doc No. 33 at 3; Doc. No. 53, Ex. 2 at 3, 9.) He acknowledged, at his presentence hearing, that he went over the plea agreement with his attorney, understood the terms of the agreement including the waiver, and was satisfied with the advice he received. (Doc. No. 53, Ex. 2 at 8-9.)
In his sentencing memorandum, Petitioner requested a fifty-seven month sentence. (Doc. No. 42 at 1.) The Government calculated Petitioner's advisory adjusted offense level as twenty-one with a criminal history category of six, and requested a seventy-seven month sentence, the low end of the corresponding advisory guidelines range. (Doc. No. 37 at 2.) On August 9, 2010, this Court held a sentencing hearing. (Doc No. 45.) After considering the arguments of the parties, the Presentence Report ("PSR"), and the sentencing factors set forth in 18 U.S.C. § 3553, this Court sentenced Petitioner to sixty-three months in custody, the low end of the sixty-three to seventy-eight month advisory Sentencing Guideline range. (Doc. No. 46; Doc. No. 53, Ex. 2 at 10-11.) Upon learning his sentence, Petitioner once again acknowledged that his right to appeal had been waived. (Doc. No. 53, Ex. 2 at 12.)
Petitioner filed the present petition on October 5, 2012. (Doc. No. 47.) He argues that he received ineffective assistance of counsel because his court-appointed attorney (1) failed to investigate and raise his claim of derivative citizenship, (2) failed to file timely objections to the PSR, and (3) failed to file a timely notice of appeal or preserve issues for appellate review. (Doc. No. 47 at 5-6.) Respondent filed its opposition on December 19, 2012, arguing that Petitioner's Petition should be denied because it is time-barred, and alternatively because Petitioner's claims lack merit. (Doc. No. 53 at 2.)
I. Legal Standard for Petitions Under 28 U.S.C. § 2255
Petitioner challenges his conviction and sentence pursuant to 28 U.S.C. § 2255. Section 2255 authorizes the Court to "vacate, set aside, or correct the sentence" of a federal prisoner on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must allege a constitutional or jurisdictional error, or a "fundamental defect which inherently results in a complete miscarriage of justice [or] omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783 (1979).
II. Statute of Limitations
Habeas petitions by federal prisoners attacking their conviction and sentence pursuant to 28 U.S.C. § 2255 are subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). Under section 2255(f), the limitations period begins to run on "the date on which the judgment became final." The Ninth Circuit explains that "final" means "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)).
Petitioner's sentence was entered on August 9, 2010. (Doc. Nos. 45, 46.) At that time, Petitioner was informed that he had fourteen days to file an appeal. (Doc. No. 53, Ex. 2 at 12:13-15.) Petitioner, however, did not file a direct appeal, and his judgment therefore became final, at the latest, on August 23, 2010. See United States. v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (finding that the statute of limitations "began to run upon the expiration of the time during which [Petitioner] could have sought review by direct appeal"); see also United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir. 2000) (holding that the statute of limitations begins to run when a federal prisoner's time for filing a petition for writ of certiorari expires). Thus, absent tolling, Petitioner had until August 23, 2011 to file his federal habeas petition. Petitioner filed the present Petition on October 5, 2012, over two years after final judgment was entered. (Doc. No. 47.) Therefore, absent tolling, his Petition is time-barred under the applicable statute of limitations.
A petitioner who files a federal habeas petition pursuant to section 2255 may be entitled equitable tolling. See United States v. Battles, 362 F.3d 1195, 1196-97 (9th Cir. 2004) (finding that the similarity in language and purpose of sections 2254 and 2255 imply that the equitable tolling available under section 2254 applies equally to section 2255 petitions). In order to benefit from equitable tolling, the petitioner bears the burden of establishing that "extraordinary circumstances beyond his control made it impossible to file a petition on time and the extraordinary circumstances were the cause of his untimeliness." Id. at 1197 (quoting Laws v. Lamarque, 351 F.3d 919, 922 ...