United States District Court, E.D. California
ORDER REGARDING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
ANTHONY W. ISHII, Senior District Judge.
This matter arises from the jury conviction of Defendant/Petitioner Pioquinto Larios Santacruz ("Petitioner"). Petitioner is currently incarcerated at the Elkton Federal Correctional Institution at Lisbon, Ohio ("Elkton FCI") 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 surrounds his contention that he was never lawfully convicted of conspiracy to distribute and/or possess with intent to distribute, distribution of, and possession with intent to distribute methamphetamine because the jury never found the quantity allegation of the government to be true. Petitioner has alleged five grounds for relief: (1) Petitioner's conviction despite the jury's finding that the government had not proven the specific quantity allegation - 500 grams or more of a mixture containing a detectable amount of methamphetamine and/or 50 grams or more of methamphetamine - violated Petitioner's Sixth Amendment and Due Process rights; (2) the district court exceeded its jurisdictional limits when it sentenced Petitioner pursuant to a § 841(b)(1)(C), despite the fact that the government did not charge him with its violation; (3) trial and appellate counsel were ineffective in failing to challenge the imposition of a sentence where not all of the elements were proven to a jury, beyond a reasonable doubt; (4) appellate counsel was ineffective in failing to file a petition for writ of certiorari; and (5) the statements made by an interpreter at trial regarding testimony previously given violated the Confrontation Clause of the Sixth Amendment. This Court need only address Petitioner's first claim on the merits because Petitioner's second through fourth claims are procedurally defaulted and Petitioner's first (partially) and fifth claims impermissibly seek to relitigate a matter decided on direct appeal as described, infra.
On December 10, 2009, Petitioner was charged in a third superseding indictment with (1) conspiracy to distribute and to possess with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; (2) distribution of methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)(A), and 18 U.S.C. § 2; and (3) possession with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Doc. 142.) On April 24, 2010, a jury found Petitioner guilty of all three offenses. (Doc. 259.) However, the jury found that the quantity allegations as to each charge were unproven. ( id. ) The district court sentenced Petitioner to 188 months on each of Counts 1, 2, and 3, all to be served concurrently. (Doc. 330 at 2.)
Petitioner appealed his sentence on largely the same grounds raised in Petitioner's instant motion. ( See Ninth Cir. Docket No. 10-10400.) The Ninth Circuit denied Petitioner's appeal on May 8, 2012. United States v. Santacruz, 480 Fed.Appx. 441 (9th Cir. 2012); Doc. 400. Mandate was issued on June 1, 2012. (Doc. 401.) Petitioner's petition for writ of certiorari to the United States Supreme Court was denied on June 24, 2013. Santacruz v. United States, 133 S.Ct. 2850 (2013) On October 15, 2013, 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 relief. See United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986).
A. Collateral review cannot be used to revisit adverse direct review.
It is well settled that a habeas petition is not a vehicle for challenging the decision of a federal appellate court. See Feldman v. Henman, 815 F.2d 1318, 1321-22 (9th Cir.1987). Consequently, a criminal defendant who raises a claim or issue on direct appeal may not again assert that same claim or issue in a section 2255 habeas corpus petition. See United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir.2000); United States v. Redd, 759 F.2d 699, 701 (9th Cir.1985). Any contrary rule would contravene the longstanding "law of the case" doctrine, under which "a court generally is precluded from reconsidering an issue that has already been decided by the same court or a high court in the same case...." Williams v. Harrington, 511 F.App'x 669, 2013 WL 1093019, *2 (9th Cir. Mar.18, 2013) (Hug, Farris, Leavy) (citing United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir.1998)); see, e.g., Reed v. Town of Gilbert, Arizona, 707 F.3d 1057, 1067 n.9 (9th Cir. 2013) (prior opinion affirming district court's determination regarding constitutionality of ordinance was the law of the case and precluded reconsideration of the issues determined by that opinion) (citing Minidoka Irrigation Dist. v. Dep't of Interior, 406 F.3d 567, 573 (9th Cir.2005)).
In response to Petitioner's appeal the Ninth Circuit rejected his claims that: (1) admission of a DEA witness's testimony regarding Petitioner's statements made through a law enforcement related interpreter were inadmissible hearsay and a violation of the Confrontation Clause, (2) the district court applied the wrong evidentiary standard in making its drug quantity determination, and (3) the drug quantity determination raised Petitioner's offense level such that he ...