United States District Court, E.D. California
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. 236)
ANTHONY W. ISHII, District Judge.
This matter arises from the criminal conviction of Defendant/Petitioner Julio Cesar Ruiz ("Petitioner"). Petitioner is currently incarcerated at the United States Penitentiary at Lompoc, California ("USP-Lompoc") and is proceeding in this matter in propria persona. Petitioner brings a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255. Petitioner's complaint involves allegations ineffective assistance of trial and appellate counsel, abuse of discretion by the court, and prosecutorial misconduct. For the following reasons, Petitioner's motion is DENIED without an evidentiary hearing.
Petitioner and co-defendant Angel Noriega-Valenzuela were indicted on March 13, 2003, for conspiring with Enrique Diaz, Jose Acosta, and Efren Lopez to manufacture and distribute methamphetamine, possessing firearms in furtherance of a drug trafficking offense, and, as to Petitioner, escaping from the custody of the Attorney General.
Defendants Diaz, Acosta, and Lopez pled guilty to conspiring to manufacture methamphetamine.
The trial for Petitioner and his co-defendant commenced on February 18, 2004. At the close of the government's evidence, the Court granted Petitioner's motion to dismiss as to the escape charge. The jury returned a verdict as to the remaining counts of February 20, 2004. Petitioner was sentenced to a term of imprisonment of 352 months in custody (representing a 292-month term as to the conspiracy to manufacture and distribute methamphetamine count and a consecutive 60-month term as to the possession of a firearm in furtherance of drug trafficking count), a $200.00 penalty assessment, and a 60-month term of supervised release on May 24, 2004.
Petitioner appealed his convictions to the Ninth Circuit Court of Appeals. A judgment by the Ninth Circuit was issued on January 5, 2007. The judgment affirmed the decision of the District Court in part and reversed in part. The Ninth Circuit reversed the conviction for possession of a firearm in furtherance of a drug trafficking offense based on insufficiency of the evidence to support a conviction. As to that count the Ninth Circuit held that: "The evidence in this case did not attribute possession of any of the firearms to any of the conspirators" as required for a conviction under 18 U.S.C. 924(c)(1)(A). See U.S. v. Mann, 389 F.3d 869, 879 (9th Cir. 2004).
This Court held a re-sentencing hearing for Petitioner on November 30, 2007, wherein Petition was sentenced to a term of 235 months in custody and 60 months of supervised release. This sentence included enhancements for possession of a firearm; this enhancement only required finding of possession by a preponderance of the evidence. The sentence also included an enhancement for escaping government custody (Petitioner fled law enforcement at the time of his initial arrest and then escaped custody once arrested). Further, this Court refused to grant Petitioner a downward departure due to his claimed minor-role or acceptance of responsibility pursuant to U.S.S.G. §§ 3B1.2(b) and 3E1.1, respectively. Petitioner appealed the re-sentencing determination to the Ninth Circuit Court of Appeals. A judgment by the Ninth Circuit was issued on March 5, 2009. The judgment affirmed the decision of the District Court in full.
Petitioner filed a petition for writ of certiorari with the United States Supreme Court. Certiorari was denied on October 5, 2009. On August 2, 2010, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255.
III. LEGAL STANDARD
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, 99 S.Ct. 2235, 60 L.Ed.2d 805 (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).
Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, when a court receives a section 2255 motion, the court must initially screen it, and dismiss it summarily if it plainly appears that the moving party is not entitled to ...