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United States v. Claros-Guzman

United States District Court, S.D. California

July 25, 2017

UNITED STATES OF AMERICA, Respondent,
v.
MARCO CLAROS-GUZMAN, Petitioner.

          ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. 2255

          Hon. Jeffrey T. Miller United States District Judge.

         Petitioner Marco Claros-Guzman moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §2255 (the “Motion”). The Government opposes the Motion. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for resolution without oral argument. For the reasons set forth below, the court denies the Motion.

         BACKGROUND

         Pursuant to the Fast Track Plea Agreement, on June 11, 2015, Petitioner pleaded guilty to being a Removed Alien Found in the United States in violation of 8 U.S.C. §1326(a) and (b). In addition to setting forth the factual basis for the plea, the Plea Agreement specifically acknowledged a March 2, 2012 felony conviction for Deported Alien Found in the United States. The Plea Agreement also provided for a waiver of appeal and collateral attack. Petitioner was sentenced at the middle of the Guideline Range recommended by the Government.

         On November 5, 2015, Petitioner was sentenced to a custodial term of nine months, followed by three years of supervised relief. (Ct6. Dkt. 29). On August 11, 2016, pursuant to Fed.R.App.P. 36, the court entered an amended judgment to correct clerical errors in the original judgment. (Ct. Dkt. 31).

         In the Motion, Petitioner alleges that, on September 7, 2016, the Immigration Judge “terminated the withholding proceedings that form the basis for the 8 U.S.C. §1326 conviction.” (Petition at p.5). Petitioner contends that he was eligible for adjustment of status “but was denied an opportunity to apply for such relief because the removal order was entered in absentia while” Petitioner was in state custody. Id. Petitioner represents that he was arrested on the current charge based on an order obtained in absentia.

         DISCUSSION

         28 U.S.C. § 2255 Review

         Claims for relief under 28 U.S.C. § 2255 must be based on a constitutional error, a jurisdictional error, a defect resulting in a miscarriage of justice, or an unfair procedure. 28 U.S.C. § 2255(a); United States v. Timmreck, 441 U.S. 780, 783-84 (1979). Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, “[i]f 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.” The court does not need to hold an evidentiary hearing or obtain a response from the government. See 28 U.S.C. § 2255; United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).

         Here, Petitioner does not identify any violation of federal law or alleged facts supportive of a federal claim. Moreover, the thrust of the Motion is that the removal order was entered in absentia and therefore violated an undisclosed federal right. However, the Government's Exhibits clearly establish that Petitioner was ordered removed following a November 26, 2003 administrative hearing. (Response Exh.2). Accordingly, the Motion fails to establish a claim subject to 28 U.S.C. §2255.

         In sum, the court dismisses the Motion.

         Statute of Limitations

         Under 28 U.S.C. §2255(f), there is a one-year statute of limitations period to file a collateral attack on a federal conviction that runs, in pertinent part here, from the date on which the judgment of conviction becomes final. 28 U.S.C. §2255. If no direct appeal is taken to the Ninth Circuit, a defendant's conviction becomes final when the time for filing a direct appeal expires. United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015).

         In Gilbert, the defendant was sentenced to a 300-month custodial sentence and the imposition of restitution. The amount of restitution was not identified in the final judgment because the defendant's assets were still being liquidated. Nearly two years later, an amended judgment issued fixing the amount of restitution and, shortly thereafter, Petitioner filed a §2255 motion. Petitioner argued that his §2255 motion was timely because the limitations period did not begin to run until entry of the amended judgment. The district court denied the §2255 motion as time-barred and the Ninth Circuit affirmed. In reliance upon Dola ...


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