United States District Court, S.D. California
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C §
Gonzalo P. Curiel United States District Judge.
Onesimo Mora-Duardo (“Petitioner”), proceeding
pro se, filed a Motion to Vacate, Set Aside, or Correct his
Sentence pursuant to 28 U.S.C. § 2255. Respondent, the
United States (“Respondent”), filed a response,
opposing the petition. Petitioner filed his reply. For the
reasons set forth below, this Court DENIES Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255.
December 16, 2014, Petitioner waived indictment and was
charged by a criminal information with being a removed alien
found in the United States in violation of 8 U.S.C.
§§ 1326(a) and (b). (Dkt. No. 9.) On January 28,
2015, Petitioner entered into a plea agreement with
Respondent. (Dkt. No. 15.) On January 28, 2015, Petitioner
plead guilty to the information before the Honorable
Magistrate Judge Nita L. Stormes. (Dkt. No. 16.) Prior to
sentencing, both parties and the Probation Officer agreed
that the base offense level of 8 should be imposed for a
violation of 8 U.S.C. § 1326(a). See U.S.S.G.
§ 2L1.2(a) (2015). Since Petitioner had a prior felony
conviction for a drug trafficking offense of possession of a
controlled substance for sale, the Probation Officer's
presentence report (“PSR”) recommended a 16-level
upward enhancement under the United States Sentencing
Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(i).
(See Dkt. No. 18, PSR at 5.) The Government and
Defendant agreed that the 16-level enhancement applied under
U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior drug
trafficking offense. (Dkt. No. 23, Gov't Sentencing
Summary Chart at 3; Dkt. No. 22, D's Sentencing Summary
Chart at 1.) At the sentencing hearing, the Court imposed a
16-level upward adjustment for the aggravated felony of a
drug trafficking offense. (Dkt. No. 30 at 7.)
both the Government and Defendant's sentencing summary
chart sought a Guidelines range of 77 months to 96 months
prior to assessing any departures, (Dkt. No. 22 at 1; Dkt.
No. 23 at 2), at sentencing, the Court reduced
Defendant's Criminal History Category from Level VI to V,
and taken together with granted departures, resulted in a
57-71 months Guidelines range, and ultimately, sentenced
Petitioner to 52 months in custody and 18 months of
supervised release. (Dkt. No. 26.)
January 26, 2016, Petitioner filed the instant motion. (Dkt.
No. 28.) On February 25, 2016, Respondent filed a Response in
Opposition to Petitioner's Motion to Vacate, Set Aside or
Correct Sentence. (Dkt. No. 32.) On March 17, 2016,
Petitioner filed a reply to Respondent's Motion to Deny
Motion to Vacate, Set Aside or Correct Sentence. (Dkt. No.
2255 authorizes this Court to “vacate, set aside, or
correct the sentence” of a federal prisoner on
“the ground 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[.]”
28 U.S.C. § 2255(a). To warrant relief under section
2255, a prisoner must allege a constitutional or
jurisdictional error, or a “fundamental defect which
inherently results in a complete miscarriage of justice [or]
an omission inconsistent with the rudimentary demands of fair
procedure.” United States v. Timmreck, 441
U.S. 780, 783 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)).
Section 2255 motion is made, “unless the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon.” 28 U.S.C. § 2255.
Denial of a Section 2255 motion, without an evidentiary
hearing, is warranted if defendant's allegations,
“when viewed against the record, do not state a claim
for relief, or are so palpably incredible or patently
frivolous as to warrant summary dismissal.” United
States v. Leonti, 326 F.3d 1111, 1116 (2003); see
also Shah v. United States, 878 F.2d 1156, 1158 (1989);
United States v. Hernandez, No. 07CV2355 J, 2009 WL
1178664, at *2 (S.D. Cal. May 1, 2009); Lopez-
Magana v. United States, No. 10CV2265-BEN, 2013 WL
6055274, at *7 (S.D. Cal. Nov. 13, 2013). “The standard
essentially is whether the movant has made specific factual
allegations that, if true, state a claim on which relief
could be granted.” United States v.
Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing
United States v. Hearst, 638 F.2d 1190, 1194 (9th
district court may also instead use discovery or documentary
evidence, the judge's own notes and recollection of the
trial proceedings and common sense to supplement the record.
Shah, 878 F.2d at 1159. “Merely conclusory
statements in a § 2255 motion are not enough to require
a hearing.” United States v. Johnson, 988 F.2d
941, 945 (9th Cir. 1993) (quoting Hearst, 638 F.2d
Relief based on Johnson
motion, Petitioner challenges the 16-level enhancement of his
sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). (Dkt.
No. 28.) Petitioner alleges “unconstitutionally (sic)
to use, to enhance, vague, to due process, to receive more
time.” (Id. at 4.) In liberally construing his
petition, it appears Petitioner is arguing that his sentence
enhancement is unconstitutional due to the recent United
States Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015), where the Court held that
a residual clause of the Armed Career Criminal Act of 1984
(“ACCA”) is void for vagueness. (Id.)
Therefore, Petitioner asks this ...