United States District Court, E.D. California
ORDER ON LOPEZ'S MOTION TO CLARIFY JUDGMENT (DOC.
NOS. 232, 233, 234)
March 9, 2010, Petitioner Efren Abraham Lopez
(“Lopez”) filed a motion pro se, asking the Court
to clarify its original judgment imposed on June 14, 2004, in
this case. Lopez pled guilty to a drug charge and the
Court adopted the presentencing report, which included a 2
point firearms enhancement. Lopez seeks to have the gun
enhancement removed from his sentence. Lopez's motion to
“clarify” is actually a challenge to the Court's
sentencing, and for the reasons that follow, the Court will
deny his motion.
14, 2004, the Court imposed judgment on Lopez. Doc. No. 163.
Lopez pled guilty to one count of the indictment, which was
Conspiracy to Manufacture and Distribute Methamphetamine and
Aiding and Abetting. Doc. No. 119. As part of the sentencing,
the Court reviewed and adopted the presentence report, which
included a 2 point firearms enhancement. See June
14, 2004 Reporter's Transcript of Proceedings. The Court
sentenced Lopez to a term of 120 months in prison and a term
of 60 months of supervised release. Doc. No. 163.
states that on January 8, 2010, he was notified by the
prison's Drug Abuse Program Coordinator that he would not
qualify for early release under the Drug Abuse Program, due
to a firearms enhancement. Lopez maintains that the Court
dismissed the 2 point gun enhancement at the sentencing phase
held before this Court. Lopez asks the Court to amend the
presentencing report and order that the 2 point enhancement
should not hinder him from receiving a reduction in his
sentence for successfully completing the Residential Drug
Abuse Program. Lopez maintains this is a matter of
U.S.C. § 2255 which provides, in pertinent
part: “A prisoner in custody under
sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States ... may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
The court may deny a hearing if the movant's allegations,
viewed against the record, fail to state a claim for relief
or are so palpably incredible or patently frivolous as to
warrant summary dismissal. United States v. Withers,
638 F.3d 1055, 1062-63 (9th Cir. 2011); Baumann v. United
States, 692 F.2d 565, 571 (9th Cir. 1983). A petitioner
is not required to allege facts in detail, but he “must
make factual allegations” and cannot rest on merely
conclusory statements. Baumann, 692 F.2d at 571;
United States v. Hearst, 638 F.2d 1190, 1194 (9th
Cir.1980). Accordingly, an evidentiary hearing is required
if: (1) a petitioner alleges specific facts, which, if true
would entitle him to relief; and (2) the petition, files, and
record of the case cannot conclusively show that the
petitioner is entitled to no relief. United States v.
Howard, 381 F.3d 873, 877 (9th Cir. 2004). If this
criteria is not met, the Court may summarily dismiss the
§ 2255 petition. See Abatino v. United States,
750 F.2d 1442, 1443-44 (9th Cir. 1985); Baumann, 692
F.2d at 571.
considering Petitioner's motion, the Court concludes that
relief is not warranted. First, Petitioner signed a plea
agreement in which he expressly agreed that he would not
engage in any post-conviction attack, including through a
§ 2255 motion. See Doc. No. 119 at ¶ 2(d)
(“The defendant also waives his right to challenge his
conviction, sentence or the manner in which it was determined
in any post-conviction attack, including but not limited to a
motion brought under Title 28, United States Code, Section
2241 or 2255.”). Plea agreements will be enforced as
long as they are unambiguous and voluntarily made. See
United States v. Jeronimo, 398 F.3d 1149, 1153-54 (9th
Cir. 2005) overruled on other grounds by United States v.
Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en
banc); United States v. Abarca, 985 F.2d 1012, 1014
(9th Cir. 1992). Petitioner does not address the plea
agreement or argue that the agreement was involuntary, and
the language of the plea agreement is clear. See
Doc. No. 119 at ¶ 2(d). The plea agreement precludes the
relief that Petitioner seeks. See Jeronimo, 398 F.3d
at 1153-54; Abarca, 985 F.2d at 1014.
there is no indication that Petitioner appealed his sentence
and a “petitioner may not collaterally attack a
sentence under § 2255 if he did not challenge it at
sentencing or on a direct appeal.” Johnson v.
United States, 362 F.3d 636, 638 (9th Cir. 2004). A
review of the sentencing transcript shows that there was no
challenge to the sentence imposed, and the docket reflects
that no appeal was taken.
IT IS HEREBY ORDERED that Petitioner's motion (Doc. Nos.