United States District Court, S.D. California
ORDER (1) DENYING
18 U.S.C. § 2255 MOTION TO VACATE SENTENCE AND (2) DENYING MOTION TO DISMISS
INDICTMENT [Dkt. Nos. 47, 50.]
GONZALO P. CURIEL, District Judge.
Petitioner, Ruben Dario Pompa-Alvarez, ("Petitioner") a federal prisoner proceeding pro se, filed a motion to vacate his federal sentence pursuant to 28 U.S.C. § 2255. [Dkt. No. 47.] Petitioner also filed a Motion to Dismiss Indictment pursuant to the Federal Rules of Criminal Procedure Rule 7(e)(1)(B)(3) and the Due Process Clause of the Fifth and Sixth Amendments of the United States Constitution. [Dkt. No. 50.] For the following reasons, the Court DENIES Petitioner's § 2255 Petition [Dkt. No. 47] and DENIES Petitioner's Motion to Dismiss Indictment, [Dkt. No. 50].
On April 4, 2011, Petitioner was arrested for possessing than 37 pounds of cocaine in his vehicle in violation of 21 U.S.C. § 841(a). [Dkt. No. 11.] On May 3, 2011, Petitioner consented to prosecution by Information rather than by Indictment. [Dkt. No. 12.] On May 23, 2011, Petitioner signed a fast-track Plea Agreement, agreeing to enter a guilty plea to possession with intent to distribute 5 kilograms or more of cocaine, the single charge in the Information. [Dkt. No. 17.] According to terms of the plea agreement, Petitioner waived his rights to appeal and collateral attack. Specifically, the plea agreement stated:
In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or collaterally attack the conviction and sentence, including any restitution order, unless the Court imposes a custodial sentence above the greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing or statutory minimum term, if applicable.
[Dkt. No. 17 at ¶XI.] Furthermore, the Plea Agreement contained a "DEFENDANT'S WAIVER OF TRIAL RIGHTS, " provision, by which the Petitioner waived the right to (A) continue to plead not guilty and require the Government to prove the elements of the crime beyond a reasonable doubt; (B) a speedy and public trial by jury; (C) the assistance of counsel at all stages of trial; (D) confront and cross-examine adverse witnesses; (E) present evidence and to have witnesses testify on behalf of defendant; and (F) not testify or have any adverse inferences drawn from the failure to testify. [Id. at ¶ IV.] Petitioner initialed each page of the Plea Agreement and signed the final page under penalty of perjury [Id.]
On May 24, 2011, Petitioner executed a "Consent to Rule 11 Plea in a Felony Case" before Magistrate Judge William McCurine. [Dkt. No. 15.] On June 8, 2011, Judge Irma Gonzalez accepted Petitioner's plea of guilty. [Dkt. No. 21.] On September 23, 2011, Judge Gonzalez sentenced Petitioner to thirty-three months in prison and three years of supervised release. [Dkt. No. 30.] On November 9, 2012, pursuant to Rule 4 of the Federal Rules of Appellate Procedure, Petitioner filed a pro se notice of appeal to the United States Court of Appeals for the Ninth Circuit. [Dkt. No. 35.] On November 21, 2011, the Ninth Circuit dismissed Petitioner's appeal for untimeliness. [Dkt. No. 39.]
On August 26, 2013, Petitioner filed the present Motion to Vacate his sentence under 28 U.S.C. § 2255 on grounds of: (1) an involuntary guilty plea, (2) ineffective assistance of counsel for failure to move for a jury trial, and (3) ineffective assistance of counsel for failure to file timely notice of appeal. [Dkt. No. 47.] On August 29, 2013, Petitioner filed a Motion to Dismiss the Indictment, alleging a Due Process violation under Apprendi v. New Jersey , 530 U.S. 466 (2000). On September 16, 2013, Petitioner's case was transferred to the undersigned Judge.
I. § 2255 Motion to Vacate Sentence
A. Legal Standard for Petition for Habeas Corpus
Section 2255 authorizes this 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 section 2255, a prisoner must allege a constitutional or jurisdictional error, or a "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck , 441 U.S. 780, 783 (1979) (quoting Hill v. United States , 368 U.S. 424, 428 (1962)).
B. Statute of Limitations
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") statute, the opportunity to file successive motions under § 2255 is strictly limited. The AEDPA amended 28 U.S.C. § 2255 by providing for a one-year limitation period for prisoners to file motions under § 2255. The section states, in pertinent part:
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 the exercise of due diligence.
28 U.S.C. § 2255(f). As it pertains to subsection (A), a conviction becomes "final" when "a judgment of conviction has been rendered, the availability of appeal has been exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky , 479 U.S. 314, 321 n. 6 (1987); see also United States v. Schwartz , 274 F.3d 1220, 1223 (9th Cir. 2001) ("[W]e have adopted, for § 2255 purposes, the definition of finality... applicable to state prisoners seeking federal habeas relief."). Under the Ninth Circuit appellate rules, a criminal defendant's notice of appeal must be filed within fourteen days after the entry of judgment. Fed. R. App. P. 4(b)(1)(A)(i).
Applying subsection (1) of the AEDPA statute of limitations, the Court finds that Petitioner filed his §2255 motion to vacate his sentence on August 26, 2013, 23.5 months after Judge Gonzalez imposed Petitioner's final sentence on September 12, 2011 and over twenty three months after Petitioner's period for appeal had lapsed. [Dkt. No. 29.] Furthermore, the Court finds that Petitioner's appeal to the Ninth Circuit does not reset the clock for AEDPA purposes. See Randle v. Crawford , 604 F.3d 1047, 1055 (9th Cir. 2010) ("If the one-year limitations period were made contingent on the resolution of a petitioner's attempt to file an untimely notice of appeal, a petitioner could indefinitely delay the commencement of the one-year period by simply waiting to file such notice until after the normal expiration date. Sanctioning this procedure would undermine the statute of limitations for federal habeas petitions."). Even if the Court were to consider the Ninth Circuit's November 21, 2011 Order dismissing Plaintiff's appeal as untimely as the "date on which the judgment became final" for the purposes of the statute of ...