United States District Court, N.D. California, San Jose Division
ORDER REQUESTING RESPONSE
LAB SON FREEMAN United States District Judge.
before the Court is Defendant Paul G. Martin's motion
pursuant to 28 U.S.C. § 2255 challenging the conviction
and sentence imposed by this Court in the criminal matter
captioned above. Having reviewed Defendant's motion in
conjunction with the Court's docket, the Court will
request United States to respond.
9, 2008, Defendant pled guilty pursuant to a written plea
agreement to one count of possessing materials involving the
sexual exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(4)(B). Mot., ECF 74. Defendant was thereafter
sentenced to a prison term of forty-eight (48) months.
Id. Judgment was imposed on March 1, 2010.
Id.; ECF 37. Defendant did not appeal the sentence.
He filed the instant motion on March 29, 2017.
Standard of Review
prisoner in custody under sentence of a federal court who
wishes to attack collaterally the validity of his conviction
or sentence must do so by filing a motion to vacate, set
aside or correct the sentence pursuant to 28 U.S.C. §
2255 in the court which imposed the sentence. 28 U.S.C.
§ 2255(a). Under 28 U.S.C. § 2255, the federal
sentencing court is authorized to grant relief if it
concludes 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.”
See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
1988). If the court finds that relief is warranted under
§ 2255, it must “vacate and set the judgment
aside” and then do one of four things: “discharge
the prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b); United States v. Barron, 172
F.3d 1153, 1157 (9th Cir. 1999).
Court will now conduct an initial review to determine whether
Defendant's motion presents a cognizable claim for relief
and requires a response by the government.
4(b) of the Rules Governing § 2255 Proceedings for the
United States District Courts, provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States to file
an answer, motion, or other response within a fixed time, or
take other action the judge may order.
alleges the following claims as grounds for relief: 1) he
first became aware that his former defense attorney, Shepard
Kopp, was under suspension by the “California Bar
Association” during the time he represented Defendant;
2) he did not receive adequate legal counsel leading up to
the plead hearing; 3) his counsel refused to examine evidence
on his computer and exhibited gross indifference in the case;
4) the government's discovery document was incoherent and
there was insufficient proof; 5) he did not appeal the guilty
verdict or claim ineffective assistance of counsel in 2008,
2009, or 2010 due to his ongoing cooperation with the United
States government and a promise of a 5K1.1 downward departure
made by an assistant United States attorney; 6) he was
coerced into accepting a guilty plea; 7) the government's
draft presentencing report was factually incorrect; 8)
Defense counsel Shepard Kopp never provided the probation
department evidence of Defendant's ischemic stroke
suffered in May 2009; 9) Defense counsel Kopp quit the
Geragos firm on December 31, 2009 and Defense counsel Mark
Geragos failed to prepare an adequate sentencing memorandum;
10) Judge James Ware did not property enumerate nor discuss
probation department recommendations for conditions of
supervised release at the sentencing hearing; 11) Defense
counsel Geragos did not object to any of the court mandated
standard conditions and special conditions and to the
ten-year term of supervised release; 12) the assistant United
States attorney, Hanely Chew, was obligated to bring a Rule
35 motion to court after promising to do so but did not honor
his commitment; and 13) Defense counsel Geragos refused to
file a motion for threshold hearing regarding Chew's
refusal to honor his promise of bring the motion for downward
departure. Liberally construed, Petitioner's claims
appear cognizable under § 2255 on the basis of their
Statute of Limitations
2255(f) imposes a one-year statute of limitation for all
motions brought under the ...