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United States v. Vazcones

United States District Court, S.D. California

April 7, 2017



          HON. MICHAEL M. ANELLO United States District Judge.

         On September 18, 2014, Defendant Daniel Vazcones was charged in a two-count Superseding Information with distribution of methamphetamine, in violation of Title 21, United States Code, section 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of Title 18, section 924(c)(1). See Doc. No. 34. Defendant pleaded guilty to both counts. See Doc. No. 38. On March 23, 2015, the Court sentenced Defendant as a career offender to a term of 180 months in custody. See Doc. No. 53. Defendant now collaterally challenges his conviction and sentence pursuant to 28 U.S.C. § 2255. See Doc. No. 56. Defendant raises multiple grounds for relief, primarily challenging his classification as a career offender under the United States Sentencing Guidelines in light of Johnson v. United States, 576 U.S. ---, 135 S.Ct. 2551 (2015), and the passage of California Proposition 47, the Safe Neighborhoods and Schools Act, Cal. Penal Code § 1170.18. Defendant also claims the government impermissibly amended the charging document in this case to add the weapons charge, and that he received ineffective assistance when his counsel advised him to plead guilty to the charges in the Superseding Information.[1] The government filed a response to Defendant's motion, to which Defendant replied. See Doc. Nos. 67, 75. For the reasons set forth below, the Court DENIES Defendant's 2255 motion.


         1. Legal Standard

         If a defendant in a federal criminal case collaterally challenges his conviction or sentence, he must do so pursuant to 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under section 2255, a court may grant relief to a defendant who challenges the imposition or length of his incarceration on the ground that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A defendant must allege specific facts that, if true, entitle him to relief. See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004); United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citation omitted).

         The Court is not required to hold an evidentiary hearing when the issues can be conclusively decided on the basis of the existing record. 28 U.S.C. § 2255; see United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980)). The Court declines to hold an evidentiary hearing in this case because the motion, on its face, conclusively demonstrates that Defendant is not entitled to relief.

         2. Waiver

         Pursuant to the terms of his written plea agreement, as confirmed on the record during the change of plea hearing and again during the sentencing hearing, Defendant waived his rights to directly appeal or collaterally attack his conviction and sentence. See Doc. No. 38 at 11-12. Therefore, as an initial matter, the government argues that this waiver precludes Defendant from seeking collateral relief. However, Defendant retained his right to pursue “a post-conviction collateral attack based on a claim of ineffective assistance of counsel.” Id. at 11. Moreover, a waiver cannot bar a claim that relates to the validity of the waiver itself. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).

         Here, Defendant brings multiple claims, including a challenge to the validity of his plea agreement (and the waivers contained therein) based on ineffective assistance of counsel. In the Ninth Circuit, such a claim is not waived. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (expressing doubt that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver). The Court therefore turns to the government's assertion that Defendant's claims are procedurally barred based on his failure to file a direct appeal.

         3. Procedural Bar

         Defendant did not challenge his sentence on direct appeal. As a result, the government argues that Defendant's claims of sentencing error are procedurally barred. Generally, on collateral review, an individual may not assert claims of constitutional error that were not previously raised before the district court or on direct review. United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1997). To obtain review of issues at this juncture that could have been raised on direct appeal, Defendant must show cause for his procedural default and actual prejudice resulting from the error. Bousley v. United States, 523 U.S. 614, 622 (1998) (“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice, ' or that he is ‘actually innocent.'”) (internal citations omitted); United States v. Frady, 456 U.S. 152, 167-68 (1982); United State v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985).

         In his reply brief, Defendant argues that he is “actually innocent” of the career offender enhancement to his sentence. The Supreme Court has opined that “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Ordinarily, a defendant can only be “actually innocent” of a noncapital sentencing enhancement if he is actually innocent of an underlying offenses used to enhance the sentence. Marrero v. Ives, 682 F.3d 1190, 1193-92 (9th Cir. 2012). Defendant does not claim to be innocent of his prior offenses.

         In the alternative, Defendant contends that he could not have brought his Johnson claim previously, and he suffered prejudice as a result. Even if the Court accepts this assertion, it would not excuse Defendant's procedural default of his other claims. In any event, as discussed below, Defendant's claims lack merit.

         4. ...

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