United States District Court, S.D. California
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C.
Jeffrey T. Miller United States District Judge.
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.
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.
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.
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.
U.S.C. § 2255 Review
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
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.
the court dismisses the Motion.
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).
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 ...