United States District Court, S.D. California
ORDER DENYING 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE, DENYING CERTIFICATE OF APPEALABILITY [Dkt. No. 541]
GONZALO P. CURIEL, District Judge.
Petitioner, James Cheevers ("Petitioner"), a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. [Dkt. No. 541.] Respondent filed an opposition. [Dkt. No. 574]. For the following reasons, the Court DENIES Petitioner's § 2255 Petition.
During an investigation, the FBI used court-authorized wire interceptions and other techniques to investigate the narcotics trafficking activities of methamphetamine distributors connected to the local Skyline gang. [Dkt. No. 459, PSR at 5.] Agents began intercepting Carlos Sanchez which revealed that he supplied methamphetamine to Petitioner Cheevers. [Id. at 5-6.] During the approximately two and a half months that agents monitored Sanchez's phones, agents intercepted about 171 relevant calls between Sanchez and Cheevers/Cleveland. [Id. at 6.] During these calls, Petitioner typically ordered ½ ounce to ounce quantities of methamphetamine from Sanchez. [Id. at 6-7.]
On February 18, 2014, pursuant to a Plea Agreement, Petitioner entered a guilty plea to a Superseding Information charging him with conspiracy to distribute controlled substances, in violation of 21 U.S.C §§ 841(a)(1) and 846. [Dkt. No. 371.] Petitioner signed the Plea Agreement and acknowledged that it included all of the promises made to him by the Government. [Dkt. No. 371 at 13-15.].
On May 16, 2014, the Court held Petitioner's sentencing hearing. [Dkt. No. 483.] Prior to the hearing, Petitioner submitted a sentencing memorandum asking that the sentence the Court would impose run concurrent to his custodial sentence on a recent state conviction. [Dkt. No. 470.] During the hearing, the Court inquired about the overlap between this case and his state case, with the Government noting that it had not begun wire intercepts until after Cheevers's arrest in his state case. [Dkt. No. 546, Ex. 3 at 10.] The Government argued that the Court not run the sentences concurrent. [Id. at 11.] The Court sentenced Cheevers to 105 months custody. [Id. at 15.] In imposing the sentence, the Court specifically rejected the proposal of running the sentence concurrent to Cheevers's custodial sentence on his state conviction. [Id. at 16.]
On June 13, 2014, Petitioner sent a letter asking the Court to reduce his sentence. [Dkt. No. 524.] Petitioner claimed he had been informed by his attorney that the Government had agreed to run his sentences concurrent in exchange for his guilty plea. [Id.] On October 7, 2014, the Court denied Petitioner's motion to modify sentence. [Dkt. No. 541.]
On July 11, 2014, Petitioner sent another letter to the Court alleging that his attorney had not responded to any of his or his family's inquiries and that he had not seen or spoken to her since his sentencing. [Dkt. No. 541.] The Court construed the letter as a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. [Dkt. No. 547.] Respondent filed a timely response on August 21, 2014. [Dkt. No. 574.]
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)).
Petitioner raises two grounds for his claim of ineffective assistance of counsel: (1) his trial attorney has not responded to inquiries by him or his family since sentencing, and (2) Petitioner claims that he was "lied to, mislead, and unprepared at sentencing." [Dkt. No. 541.] In ...