United States District Court, N.D. California
ORDER DENYING DEFENDANT'S SECOND MOTION UNDER SECTION 2255 AND MOTION FOR RELEASE
WILLIAM ALSUP, District Judge.
In this criminal matter, pro se defendant Rene Navarez has filed (1) another motion under Section 2255 of Title 28 of the United States Code, as well as (2) a motion for "release pending appeal of sentence" under Section 3143 of Title 18 of the United States Code. Defendant also seeks an evidentiary hearing in connection with his present Section 2255 motion. For the reasons discussed below, both motions are DENIED. The request for an evidentiary hearing is DENIED AS MOOT.
The background of this action is set forth in a prior order (Dkt. No. 63). In short, this prosecution was originally assigned to Judge Marilyn H. Patel. Assistant Federal Public Defender Loren Stewart was defense counsel, representing defendant through his sentencing hearing.
In August 2009, by way of a signed plea agreement, defendant pled guilty to one count of possession with intent to distribute cocaine base within a thousand feet of a public elementary school. See 21. U.S.C. 841(a)(1), (b)(1)(A), and 860(a). That plea agreement stated (Dkt. No. 26 at 3):
I knowingly and voluntarily agree to waive any right I may have to file any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, or a motion under 18 U.S.C. § 3582, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated.
Judge Patel then accepted the plea, finding that defendant was mentally competent to plead, that he understood the nature of the charge against him, and that he knowingly and freely gave up his rights. She later sentenced defendant to 144 months in custody, with judgment entered on November 24, 2009.
Defendant did not appeal. He did, however, submit a "motion for relief from judgment under Fed. R. Crim. Proc. Rule 60(b)(6)" in January 2011. Observing that defendant was "apparently referring to Rule 60(b)(6) of the Federal Rules of Civil Procedure, " and not the Federal Rules of Criminal Procedure, Judge Patel denied the motion (Dkt. Nos. 45, 46).
This matter was then reassigned to the undersigned judge in June 2011. On June 10, 2011, defendant filed a pro se motion to vacate, set aside, or correct his sentence under Section 2255. Among other items, defendant claimed ineffective assistance of counsel on the grounds that Attorney Stewart allegedly failed to investigate inconsistent drug reports, misadvised defendant in failing to file a Section 3582 motion, and failed to argue that defendant's sentence should have been calculated under the powder cocaine guidelines. In an order dated December 9, 2011, the undersigned judge denied the Section 2255 motion as untimely given that the one-year statute of limitations had expired on January 23, 2011. Defendant appealed, but an order later denied him a certificate of appealability on the prior denial of his Section 2255 motion (Dkt. Nos. 63, 67).
At issue now are (1) defendant's second motion under Section 2255, and (2) his motion for "release pending appeal of sentence." In addition, defendant requests an evidentiary hearing in connection with his present Section 2255 motion. Having considered full briefing from both sides, this order decides below.
1. SECOND MOTION UNDER SECTION 2255.
For defendant's present Section 2255 motion, the nub of his claim is that ...