United States District Court, N.D. California
ORDER DISMISSING § 2255 MOTION WITH PREJUDICE
AND DENYING CERTIFICATE OF APPEALABILITY Re: Doc. No.
PHYLLIS J. HAMILTON United States District Judge.
the court is the petition of defendant Mark Enriquez,
appearing pro se, for the court to order that the sentence
imposed on June 26, 2013, run concurrently with the sentences
imposed on August 1, 2013, by the state court in Nevada. Doc.
no. 67. Enriquez is currently serving his state sentences in
Nevada, and has previously inquired about serving concurrent
sentences, which the court addressed in the Order Re Request
For Information About Sentence And Notice Re: Section 2255
Motion, entered January 15, 2015. Doc. no. 64. In that order,
the court explained that Enriquez's federal sentence will
commence on the day he is received into federal custody to
serve his sentence, which cannot begin until he has completed
his state sentences. Id. at 2-3 (citing 18 U.S.C.
§ 3584(a) (“Multiple terms of imprisonment imposed
at different times run consecutively unless the court orders
that the terms are to run concurrently.”)).
court also notified Enriquez of the potential adverse
consequences of treating his request for relief as a motion
under 28 U.S.C. § 2255, and gave him the opportunity to
either (a) file a statement indicating his consent to
recharacterizing his request for information as a § 2255
motion and addressing whether the motion is not waived by the
plea agreement and is not untimely; or (b) file a single,
all-inclusive § 2255 motion that asserts all his claims
for collateral relief and addresses whether the motion is not
waived by the plea agreement and is not untimely. Doc. no. 64
at 5-6 (citing Castro v. United States, 540 U.S.
375, 377 (2003); United States v. Seesing, 234 F.3d
456, 464 (9th Cir. 2001)). By separate order, the court
granted Enriquez's request for additional time to respond
to the January 15, 2015 order, to July 1, 2015. Doc. no. 66.
Enriquez did not timely file a § 2255 motion or consent
to recharacterizing his request for information as a §
extent that Enriquez seeks modification of his term of
imprisonment, he does not assert grounds for modification or
correction of the sentence pursuant to 18 U.S.C. §
3582(c), such as post-sentencing substantial assistance,
compassionate release or a sentencing range under the
applicable Sentencing Guidelines that was subsequently
lowered. Under § 3582(b), the judgment of conviction
imposed on June 26, 2013, which included a prison sentence,
“constitutes a final judgment for all other
purposes.” To the extent that Enriquez seeks relief
under § 2255 to vacate, set aside, or correct the
sentence, the court construes the petition as a § 2255
motion and conducts an initial review to determine whether it
presents a cognizable claim for relief and requires a
response by the government. A district court must summarily
dismiss a § 2255 motion “[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.” Rule 4(b), Rules Governing Section 2255
Proceedings for the United States District Courts.
asserts in his § 2255 motion that the “best course
of action” would be to shift the cost of his 46-month
prison term to the state by ordering his federal sentence to
be served concurrently with his state sentences, and that he
will be afforded the opportunity to change and improve his
life while in state custody. Doc. no. 67 ¶¶ 10-11.
Enriquez also asserts that the Bureau of Prisons should give
him credit for time served in state custody from when he was
remanded to state custody on July 29, 2013, id.
¶ 12, but as the court has already ruled, the court
lacks authority to grant and compute prison credits. Doc. no.
64 at 5 (citing United States v. Checchini, 967 F.2d
348, 349 (9th Cir. 1992)) (citation omitted). None of these
assertions present a claim 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, ” that would be cognizable under
§ 2255. The motion also fails to present any cognizable
claim for relief on the separate grounds (1) that the motion
is waived by the plea agreement to count one of the
indictment charging a violation of 18 U.S.C. § 371
(conspiracy to commit identity theft) that was entered by
Enriquez on April 10, 2013, and (2) that the motion is
review of the § 2255 motion, the record and the relevant
authority, the court concludes that the motion conclusively
shows that Enriquez is entitled to no relief. See 28
U.S.C. § 2255(b). Therefore, neither a hearing nor a
response from the government is required, and the motion is
DISMISSED WITH PREJUDICE. See Marrow v.
United States, 772 F.2d 525, 526 (9th Cir. 1985). This
is a final order disposing of the § 2255 motion to
vacate, set aside, or correct the sentence.
OF CERTIFICATE OF APPEALABILITY
U.S.C. § 2253(c)(1) precludes an appeal from a final
order in a proceeding under § 2255 unless a circuit
justice or judge issues a certificate of appealability
(“COA”). A COA may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2);
see Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.
1996). Pursuant to Rule 11(a) Governing Section 2255
Proceedings, the court declines to issue a certificate of
appealability because reasonable jurists would not ...