United States District Court, N.D. California, San Jose Division
ORDER DISMISSING MOTION WITH LEAVE TO AMEND
LABSON FREEMAN United States District Judge.
before the Court is Defendant Paul Zabala
(“Zabala”)'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 Zabala's motion in conjunction with the
Court's docket, the Court DISMISSES Zabala's motion
with leave to amend.
March 29, 2012, Zabala pled guilty pursuant to a written plea
agreement to two counts of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §
841(a)(1) and one count of conspiracy thereto in violation of
21 U.S.C. § 846. ECF 35. Judgment was imposed on July
24, 2012 and Zabala was thereafter sentenced to a prison term
of 180 months, later reduced to 155 months. Id.; ECF
43, 61. Zabala applied for leave to file second or successive
28 U.S.C. § 2255 in the Ninth Circuit Court of Appeals
in June 2016, which the Ninth Circuit denied as unnecessary
because a first § 2255 motion was not filed in the
district court. ECF 64. Zabala's proposed motion was then
transferred to this Court and deemed filed on June 21, 2016.
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
Zabala'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.
grounds for relief, Zabala alleges that his sentence was
erroneously enhanced citing to 18 U.S.C. § 924(c)(3)(b)
and Johnson v. United States, 135 S.Ct. 2551 (2015).
Mot. 4, ECF 64-1. Zabala's application to the Ninth
Circuit also mentions in passing that Zabala “plans to
challenge all his prior convictions used to enhance his
sentence and appellate counsel's ineffectiveness for
failing to challenge the prior convictions during direct
appeal. Mot., Appl. IV. However, in the memorandum in support
of his § 2255 motion, Zabala provides no ineffective
assistance of counsel claims and identifies no appellate
proceedings to be challenged here. In fact, there has been no
appellate proceeding with respect to this case other than his
recent application to the Ninth Circuit to file a successive
§ 2255 motion. Not only is this motion deficient in its
allegations to support any ineffective assistance of counsel
claim, it also appears to be time-barred. 28 U.S.C. §
2255(f) imposes a one-year statute of limitation for all
motions brought under the statute. However, the Johnson claim
appears to have been timely filed. The Court recognizes that
the bar of the statute of limitations is an affirmative
defense and thus the dismissal is not based on that apparent
deficiency. This dismissal with leave to amend is based
solely on the inadequacy of the factual allegations to
support a claim.
appears plainly from the face of the motion and the record
that Zabala is not entitled to relief. See Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (holding that
the district court may enter an order for the summary
dismissal of a habeas petition “[i]f it plainly appears
from the face of the petition and any exhibits annexed to it
that the petitioner is not entitled to relief in the district
court”) (citation omitted). In the Indictment filed on
August 26, 2011, Zabala was charged with conspiracy to
possess with intent to distribute and to distribute 50 grams
or more of methamphetamine (Count 1), in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(vii);
aiding and abetting of possession with intent to distribute 5
grams or more of methamphetamine (Count 2), in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii); and
aiding and abetting of possession with intent to distribute
50 grams or more of methamphetamine (Count 3), in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii).
Indictment, ECF 1.
March 29, 2012, Zabala pled guilty to all three counts of the
Indictment. Plea Agreement, ECF 35. The plea agreement,
however, states no conviction for possessing a firearm and
the government did not seek an enhancement under 21 U.S.C.
§ 851 or “Career Offender” status for
Zabala. See generally id.; id. ¶ 7. At
Zabala's sentencing on July 12, 2012, this Court
concluded that Zabala's total adjusted offense level was
29 and that he had a criminal history category VI. ECF 41,
59. The resulting advisory guideline sentence range was 151
to 188 months incarceration. Zabala's drug conviction
required a mandatory minimum sentence of 120 months on Counts
1 and 3. This Court initially sentenced Zabala to a guideline
sentence of 180 months incarceration on each of the three
counts, all terms running concurrently. ECF 41. After the
U.S. Sentencing Commission added Amendment 782, reducing by
two levels the offense levels assigned to drug quantities in
§2D1.1, Zabala moved to reduce his sentence on October