United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Movant is a federal prisoner, proceeding without counsel, with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 filed May 15, 2014. (ECF No. 52.) Movant challenges his 2007 conviction for being a deported alien in the United States in violation of 8 U.S.C. § 1326. Movant argues that his trial counsel was ineffective during sentencing for failing to argue that movant's prior conviction for sexual battery in violation of California Penal Code § 243.4(a) did not categorically constitute a crime of violence under the sentencing guidelines.
On June, 19, 2014, respondent filed a motion to dismiss. (ECF No. 56.) Movant did not oppose the motion. Accordingly, on October 2, 2014, the undersigned ordered movant to show cause within twenty-one days why respondent's motion should not be granted. (ECF No. 61.) Twenty-one days passed and movant did not respond to the show cause order.
For the reasons stated herein, the undersigned recommends that respondent's motion be granted.
On February 12, 2007, movant entered a plea agreement pursuant to which he plead guilty to 8 U.S.C. § 1326. (ECF No. 56-1 at 9.) In exchange, respondent agreed that movant would be sentenced under the Fast-Track Immigration Prosecution Program. (Id. at 12.) Accordingly, respondent agreed not to oppose a three-level reduction in movant's offense level for his acceptance of responsibility. (Id.) In addition, at the time of sentencing, respondent agreed that it would move for a four-level downward departure under United States Sentencing Guideline Section 5K3.1. (Id.) The parties further stipulated that movant's conviction for sexual battery was a crime of violence, resulting in a 16 level increase in offense level under the guidelines. (Id. at 12.) In the plea agreement, movant also waived his right to appeal and to bring a post-conviction attack on any aspect of his conviction or sentence, including the filing of a motion under either 28 U.S.C. § 2255 or § 2241. (Id. at 11-12.)
On February 12, 2007, movant plead guilty. (Id.) On April 23, 2007, the court sentenced movant to 42 months in prison, 3 years of supervised release and a $100 fine. (Id. at 17-22.) The court entered judgment on April 23, 2007. (ECF No. 24.) The judgment was filed in the court docket on May 1, 2007. (Id.) The docket reflects that movant did not appeal. According to respondent, movant was deported on October 26, 2009, after completing his sentence.
According to respondent, after his deportation, movant illegally reentered the country and in September 2011, was arrested for second degree robbery, second degree burglary, failure to register as a sex offender and providing false identification to a peace officer. As a result of this illegal reentry, movant was subsequently prosecuted for violating 8 U.S.C. § 1326 in 2:12-cr-0190. In addition, movant's supervised release in the instant case was revoked. On November 19, 2012, the court sentenced movant in both cases at the same proceeding. (Id. at 24.) The court sentenced movant to 13 months in the instant case and to 33 months in 2:12-cr-0190, for a total of 46 months. (Id. at 39.) The court did impose any further terms of supervised release. (Id. at 40.)
Movant appealed the sentences imposed in the instant case and 2:12-cr-0190. On January 24, 2014, the Ninth Circuit Court of Appeals affirmed the sentences. (ECF No. 50.)
In the pending motion, movant argues that his trial counsel was ineffective for failing to argue that movant's prior conviction for sexual battery in violation of California Penal Code § 243.4(a) did not categorically constitute a crime of violence under the sentencing guidelines. In support of this claim, movant cites United States v. Espinoza-Morales, 621 F.3d 1141, 1145-46 (9th Cir. 2010), where the Ninth Circuit held that sexual battery was not categorically a crime of violence for the purpose of the applicable immigration guidelines at U.S.S.G. § 2L1.2.
Statute of Limitations
Respondent first argues that the instant motion is barred by the statute of limitations. A one year statute of limitations applies to motions filed pursuant to 28 U.S.C. § 2255. ...