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United States v. Solis-Sanchez

United States District Court, E.D. California

March 28, 2017

UNITED STATES OF AMERICA, Plaintiff /Respondent,
v.
FELIPE SOLIS-SANCHEZ, Defendant/Movant.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Movant Felipe Solis-Sanchez is a federal prisoner proceeding pro se with a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence imposed November 14, 2013, for which judgment was entered on November 18, 2013. See ECF Nos. 74, 75. Movant filed his motion on August 8, 2016. See ECF No. 100. The government has responded with a motion to dismiss based on the statute of limitations and on the ground that movant's petition fails to allege a cognizable claim. See ECF No. 106. Movant filed his reply on January 30, 2017. See ECF No. 110. For the reasons that follow, the undersigned recommends that respondent's motion to dismiss be granted, and movant's Section 2255 motion be dismissed with prejudice.

         II. Background

         In November 2013, movant pled guilty to conspiracy to distribute, and possession with intent to distribute, controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and was sentenced to a prison term of 192 months. See ECF No. 74. Judgment was entered on November 18, 2013. See ECF No. 75. Two years later, by stipulation and order filed November 10, 2015, movant's sentence was reduced to 188 months pursuant to 18 U.S.C. § 3582(c)(2), due to a retroactive change in the Sentencing Guidelines. The Amended Judgment Reducing Sentence was entered on November 18, 2015. See ECF No. 99.

         Following entry of the original judgment, movant filed a notice of appeal in the Ninth Circuit Court of Appeals on December 20, 2013. See ECF No. 87. Movant thereafter requested voluntary dismissal of the appeal, which was granted on March 25, 2014, subject to immediate mandate. See ECF No. 95.

         On August 3, 2016, [1] movant filed the instant petition pursuant to 28 U.S.C. § 2255.[2] See ECF No. 100. Movant contends that his indictment was invalid, the therefore that his resulting conviction and sentence are void. Movant asserts that his petition was timely filed because based on newly discovered evidence. Respondent moves to dismiss the petition on the ground that it was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2255(f), and because it fails to allege a cognizable claim. Movant's reply expands upon the claims set forth in his petition.

         III. Analysis

         “Under 28 U.S.C. § 2255(f), there is a one-year period of limitation to file a collateral attack on a federal conviction that runs from the latest of four events[.]” United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015). Only two of these four events have potential application to the determination whether the instant petition was timely filed. Movant's Section 2255 petition must have been filed in this court within one year from “the latest of” the following: “(1) the date on which the judgment of conviction becomes final; [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).

         Movant's conviction became final on March 25, 2014, when the Court of Appeals granted movant's request to voluntarily dismiss his direct appeal. See Cooper v. Cooke, 2006 WL 3124907, at *3, 2006 U.S. Dist. LEXIS 79095 (D. Haw. Oct. 30, 2006) (“United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir. 2006) (voluntary dismissal divests appellate court of jurisdiction); United States v. LaFromboise, 427 F.3d 680, 683 (9th Cir. 2005) (case is final when the availability of appeal is exhausted)”); accord, United States v. Jacobs, 2012 WL 1902018, at *2, 2012 U.S. Dist. LEXIS 73339, at *6 (C.D. Cal. Feb. 7, 2012), report and recommendation adopted, 2012 WL 1902017, 2012 U.S. Dist. LEXIS 73340 (C.D. Cal. May 25, 2012).

         Movant's resentencing on November 18, 2015, pursuant to 18 U.S.C. § 3582(c)(2), did not impact the finality of movant's conviction and sentence on March 25, 2014. See Dillon v. United States, 560 U.S. 817, 821 (2010) (“When the [Sentencing] Commission makes a Guidelines amendment retroactive, 18 U.S.C. § 3582(c)(2) authorizes a district court to reduce an otherwise final sentence that is based on the amended provision.”). “[S]ection 3582(c)(2) does not authorize a plenary resentencing proceeding, but only a limited adjustment to an otherwise final sentence when the Guidelines range applicable to a defendant's sentence has subsequently been lowered.” United States v. Mayo, 548 Fed.Appx. 440 (9th Cir. 2013) (citing Dillon, supra).

         Therefore, absent grounds for equitable tolling, see United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004) (“statute of limitations contained in § 2255 is subject to equitable tolling”), the limitations period expired on March 25, 2015, one year after the Court of Appeals granted movant's request to voluntarily dismiss his direct appeal. Movant's Section 2255 petition was filed on August 8, 2016, more than sixteen months later.

         Equitable tolling may be available upon a showing that extraordinary circumstances beyond movant's control made it impossible for him to file his petition on time. Battles, 362 F.3d at 1197 (citation omitted). Although movant's “newly discovered evidence” argument under Section 2255(f)(4) appears to overlap with considerations of equitable tolling, the argument is not framed in those terms and, in any case, is frivolous for the reasons set forth below. Therefore, this court finds that equitable tolling does not apply.

         Accordingly, this court finds that the instant petition was untimely filed ...


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