United States District Court, E.D. California
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE (DOC. 636)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
Zamora ("Petitioner"), a prisoner in federal
custody, brings a pro se 28 U.S.C. § 2255 motion
("Habeas motion") to vacate, set aside, or correct
BACKGROUND OF THE CASE
February 1, 2012, Petitioner was indicted on the charge of
conspiring to distribute methamphetamine and with two counts
of possessing methamphetamine with intent to distribute.
Second Superseding Indictment, Doc. 12. On May 30, 2013,
Petitioner signed a plea agreement with the United States
("the government"), wherein he agreed to plead
guilty to the crime of distribution of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). Mem. of Plea
Agreement, Doc. 147. Petitioner waived his right to trial as
well as to appeal and other post-conviction remedies.
Id. at 3-4. The government agreed to recommend a
three-level downward departure in recognition that Defendant
had a minor role in the criminal operation, and that it would
not oppose a downward departure for acceptance of
responsibility, if one was recommended by the United States
Probation Office. Id. at 5-6. The agreement
describes that the maximum potential sentence Petitioner
might have received was forty years and that there was a
mandatory minimum sentence of five years. Id. at 7.
His plea was entered on June 3, 2013. Doc. 156. On August 29,
2013, he was sentenced to a term of ninety-two months.
April 27, 2016, Petitioner filed the instant motion to
"vacate, set aside and/or correct sentence, judgment
conviction, plea & plea agreement pursuant to 28 U.S.C.
§ 2255." Habeas Motion, Doc. 636. Petitioner claims
that the Court counted a previous state felony conviction of
his when it determined his Criminal History Category, but
that the state has since reclassified this offense as a
misdemeanor. Id. at 4. Petitioner argues that the
reclassification means that the Court should adjust his
Criminal History Category from "V" to
"IV." Id. He also raises an ineffective
assistance of counsel issue based on his attorney's
failure to file an appeal and requests "post-sentencing
rehabilitative relief, " pursuant to Pepper v.
United States, 562 U.S. 476 (2011). Id.
request by this Court, Doc. 644, the government filed an
opposition. Government's Opp'n to Def.'s Mot. to
Vacate Sentence ("Opposition"), Doc. 645. The
government argues that classification of Petitioner's
prior offense had no effect on the determination of his
Criminal History Category. Id. at 2-3. Petitioner
did not file a reply.
STANDARD OF REVIEW
federal prisoner making a collateral attack against the
validity of his or her conviction or sentence must do so by
way of a motion to vacate, set aside or correct the sentence
pursuant to 28 U.S.C. § 2255, filed in the court which
imposed sentence. Tripati v. Henman, 843 F.2d 1160,
1162 (9th Cir. 1988). Under § 2255, the federal
sentencing court may grant relief if it concludes that a
prisoner in custody was sentenced in violation of the
Constitution or laws of the United States. United States
v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To
warrant relief, a movant must demonstrate the existence of an
error of constitutional magnitude that had a substantial and
injurious effect or influence on the guilty plea or the
jury's verdict. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993). Relief is warranted only where a movant has
shown "a fundamental defect which inherently results in
a complete miscarriage of justice." Davis v. United
States, 417 U.S. 333, 346 (1974).
Criminal History Category Computation
argued that he was awarded three criminal history points in
association for his conviction in Kings County (Hanford)
Superior Court case number 05CM1383AHTA, for possession of
methamphetamine. Habeas Motion at 3. He argues that since the
state of California has recently reclassified this offense as
a misdemeanor, he should have only received two criminal
history points. Id. Upon review of Petitioner's
Presentence Investigation Report ("PSR"), Doc. 303,
it appears that Petitioner is mistaken. As the Government
points out, he received two, not three points for this
offense. Id. at 17. Two points is consistent with
guideline recommendations, because he served eight months and
twelve days for this offense. U.S.S.G. § 4A1.1(b). Thus,
there is no basis for finding that the Criminal History
Category was incorrectly determined. Further, and as the
Government also discussed, pursuant to the USSG, criminal
history points are assigned based on the basis of the
sentence imposed on a defendant for an offense; not
on the classification of the offense as felony or
misdemeanor. See U.S.S.G. § 4A1.1. Thus, the
reclassification of a previous offense generally has no
retroactive effect on Criminal History Category
determination. In short, Petitioner is not entitled to relief
under section 2255 on this basis.
Ineffective Assistance of Counsel
asserts "that he asked his counsel to file his Notice of
Appeal at the time of sentencing." Habeas Motion at 6-7.
Accordingly, he seeks relief under § 2255 for a
violation of his Sixth Amendment Right to effective
assistance of counsel. Id. Petitioner is precluded
from bringing this claim because the statutory deadline has
long since passed. 28 U.S.C.A. § 2255(f)(1). The Court
entered judgment against Petitioner on August 26, 2013. Doc.
338. His conviction became final fourteen days later, on
September 9, 2013. Fed. R. App. P. 4(b)(1)(a). Therefore, the
deadline to file for habeas relief expired a year after that
date- on September 9, 2014. 28 U.S.C. § 2255(f).
Moreover, there is nothing in the record before the court
suggesting any basis ...