Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gitmed

United States District Court, E.D. California

May 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN DEREK GITMED, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C §2255 (Doc. 154)

         I. Introduction

         This matter arises from the criminal conviction of Defendant John Derek Gitmed (“Defendant”). On August 3, 2015, Defendant pled guilty to trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a)(1). Doc. 90. On December 7, 2015, Defendant was sentenced to 77 months in the custody of the Bureau of Prisons. Docs. 130-131. On February 7, 2017, Defendant filed[1] the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Defendant alleges that his counsel's representation was constitutionally ineffective for three reasons: (1) counsel discouraged Defendant from taking a plea agreement that would have resulted in a more favorable sentence; (2) counsel failed to challenge the government's calculation of the value of the counterfeit goods sold; and (3) counsel failed to seek reduction of two of Defendant's prior convictions from felonies to misdemeanors prior to sentencing in this action.

         For the following reasons, Defendant's motion to vacate will be denied.

         II. Legal Standard

         Section 2255 allows a prisoner in federal custody to move the sentencing court to vacate, set aside or correct the sentence if he claims the right to be released upon any of the following four grounds: 1) the sentence was imposed in violation of the Constitution or laws of the United States; 2) that the court was without jurisdiction to impose such sentence; 3) that the sentence was in excess of the maximum authorized by law; or 4) is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

         Under Rule 4(b) of the Rules Governing Section 2255 proceedings, the court must initially screen a Section 2255 motion, and dismiss it summarily if it plainly appears that the moving party is not entitled to relief. See U.S. v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). “If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal.” 28 U.S.C. § 2255 Proc. R. 4(b). The court shall serve notice of the motion upon the U.S. Attorney and grant a hearing on the motion unless the motion and the record of the case “conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         “The facts in a habeas petition need not be so detailed as to establish prima facie entitlement to habeas relief; they are sufficient if they suggest the real possibility that constitutional error has been committed.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996). A defendant “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Id. The court must “construe pro se habeas filing liberally.” Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003).

         III. Discussion

         A. Timeliness

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides a one-year statute of limitations to file a petition to vacate, set aside, or correct a sentence. This period runs from: “(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of [federal law] is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; 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)(1)-(f)(4).

         In order to determine if the petition is timely, the court must first determine which of the possible starting times for the running of the statute of limitations applies. In this case, the third starting point specified by Section 2255(f) is not applicable because Defendant does not assert a newly recognized right that has been made retroactive to cases on collateral review. Likewise, there is no claim that new facts supporting the Section 2255 motion could not have been discovered through due diligence, therefore the fourth of the possible starting or triggering events does not apply.

         Defendant alleges that a government-created impediment to bringing a Section 2255 motion existed.[2] Specifically, Defendant contends that he “was repeatedly transferred from local/federal/contract facilities (post[-]sentencing) for a total of 8 separate times over the course of 13 months.” Doc. 154 at 4. Defendant detailed each of the transfers. Doc. 154 at 2. Defendant contends that “[d]uring the[] transfer periods … [he] could not access any of his legal paperwork … [or] law resources (i.e. - law library) for research purposes.” Doc. 154 at 2.[3] Defendant contends that he was not given access to a law library or his court records until he arrived at his present place of incarceration (FCI Sheridan), thirteen months after his sentencing. Doc. 154 at 3. Defendant claims that the deprivations prevented him being able to draft the instant petition.

         An alleged governmental impediment must be illegal or unconstitutional to toll running of the limitations period. United States v. Monreal, 301 F.3d 1127, 1131 (9th Cir.2002). Complete denial of access to legal resources or personal legal documents may rise to the level of a constitutional violation if the “alleged shortcomings in the library or legal assistance program hindered [the defendant's] efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996); see Espinoza-Matthews v. California, 432 F.3d 1021, 1027-1028 (9th Cir. 2005) (discussing deprivation of personal legal materials in the equitable tolling context). If Defendant's allegation-that he was denied law library access and his legal documents for thirteen months after his sentence was imposed-is true, that deprivation may operate as a government-created impediment that would toll running of the one-year limitations period. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (suggesting that denial altogether of access to personal legal papers is an appropriate basis for tolling); Espinoza-Matthews v. California, 432 F.3d at 1027-1028.

         If Defendant was not completely denied law library access or access to his personal legal documents, the first of the possible starting points for the running of the statute of limitations would apply. If the finality start-date applies, the one-year statute of limitations on Defendant's right to file a motion for habeas review pursuant to Section 2255 began to run on the date that the judgement became final. Where, as here, there was no appeal, the judgment is final the day following the last day on which notice of appeal to the Ninth Circuit could have been filed. See United States v. Colvin, 204 F.3d 1221, 1224 (9th Cir.2000) (“A judgment cannot be considered final as long as a defendant may appeal either the conviction or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.