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United States v. Caballero

United States District Court, E.D. California

November 20, 2017

UNITED STATES OF AMERICA, Respondent,
v.
CESAR CABALLERO, Movant.

          ORDER

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Movant Cesar Caballero, a former federal prisoner, is proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] Caballero alleges the following grounds in support of that motion: (1) the Ninth Circuit's decision in a separate civil case undermines the basis for his conviction; (2) the time he spent incarcerated for civil contempt should be credited toward the criminal sentence in this case; (3) his attorney was ineffective by failing to contest federal jurisdiction; (4) the court erred in admitting ‘self-serving declarations'; and (5) that he has been subjected to multiple punishments in violation of the Fifth Amendment's Double Jeopardy Clause. The Government has filed a combined opposition and motion to dismiss. ECF No. 79. Upon careful consideration of the record and the applicable law, the fourth and fifth claims will be dismissed as procedurally defaulted and the remainder of Caballero's § 2255 motion will be denied on its merits.

         I. Law Applicable to Motions Pursuant to 28 U.S.C. § 2255

         A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed in the court which imposed sentence. United States v. Monreal, 301 F.3d 1127, 1130 (9th Cir. 2002). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. Davis v. United States, 417 U.S. 333, 344-45 (1974); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant relief, a movant must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.”) Relief is warranted only where a petitioner has shown “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346. See also United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).

         Under § 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section, ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). 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. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotation marks omitted). See also United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). To warrant a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Withers, 638 F.3d at 1062; McMullen, 98 F.3d at 1159. Mere conclusory assertions in a § 2255 motion are insufficient, without more, to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

         Claims or arguments raised on appeal are not cognizable in a § 2255 motion. See United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (claims previously raised on appeal “cannot be the basis of a § 2255 motion.”); United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979) (“[i]ssues disposed of on a previous direct appeal are not reviewable in a subsequent § 2255 proceeding.”). See also Davis v. United States, 417 U.S. 333, 342 (1974) (issues determined in a previous appeal are not cognizable in a § 2255 motion absent an intervening change in the law). Further, claims challenging the sufficiency of the evidence are not cognizable in § 2255 motions. See United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010) (movant's “evidence-based” claim that “called into doubt the overall weight of the evidence against him” was not cognizable in § 2255 motion); Barkan v. United States, 362 F.2d 158, 160 (7th Cir. 1966) (“a collateral proceeding under section 2255 cannot be utilized in lieu of an appeal and does not give persons adjudged guilty of a crime the right to have a trial on the question of the sufficiency of the evidence or errors of law which should have been raised in a timely appeal”); United States v. Collins, 1999 WL 179809 (N.D. Cal. Mar. 25, 1999) (insufficiency of the evidence is not a cognizable attack under section 2255).

         Claims that could have been, but were not, raised on appeal are not cognizable in § 2255 motions. United States v. Frady, 456 U.S. 152, 168 (1982((a collateral challenge is not a substitute for an appeal); Sunal v. Large, 332 U.S. 174, 178 (1947) (“So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal”); Unites States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985) (“Section 2255 is not designed to provide criminal defendants repeated opportunities to overturn their convictions on grounds which could have been raised on direct appeal”). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either “cause” and actual “prejudice, ” or that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted); United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007) (same). “Ineffective assistance of counsel constitutes ‘cause' for failure to raise a challenge prior to section 2255 collateral review.” United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).

         II. Factual and Procedural Background

         In an information dated February 2, 2011, Caballero was charged with three counts of obstruction of mail in contravention of 18 U.S.C. § 1701. ECF No. 1. On August 30, 2011, he was found guilty of all three counts after a trial in the United States District Court for the Eastern District of California in Case No. 11-mj-00035-EFB. ECF Nos. 1 & 13. On April 30, 2012, he was sentenced to ninety days incarceration - thirty days for each count to be served consecutively. ECF No. 25.

         Caballero appealed (ECF No. 29) and, before the Ninth Circuit, argued that: (1) the evidence used to convict him was insufficient; (2) that variance between the evidence at trial and the information deprived him of an opportunity to present a defense and exposed him to unanticipated evidence; (3) he was denied the right to allocute; and (4) that his sentence was unreasonable. United States v. Caballero, 583 F. App'x 806 (9th Cir. 2014). The Ninth Circuit vacated one of Caballero's three convictions based on insufficient evidence and affirmed the other two. Id. He was resentenced on June 29, 2015 to two thirty day terms of imprisonment to be served consecutively. ECF No. 63.

         On April 26, 2016, Caballero filed the current motion to vacate, set aside, or correct his sentence. ECF No. 73. The government filed its answer on June 29, 2016 (ECF No. 79) and Caballero filed a response to the answer (ECF No. 81) on July 15, 2016. The sixty day sentence imposed by this court was completed on April 27, 2016. ECF No. 79 at 3.

         III. Government's Motion to Dismiss

         A. Procedural Default

         As noted above, the government's response also contains a motion to dismiss three of Caballero's claims due to his failure to raise them in his direct appeal. Id. at 4-5. These claims are: (1) that the time he spent incarcerated for civil contempt should be credited toward the criminal sentence in this case; (2) that this court erred in admitting ‘self-serving declarations' during his trial; and (3) that he has been subjected to multiple punishments in violation of the Fifth Amendment's Double Jeopardy Clause. Id. “The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006); United States v. Ratigan, 351 F.3d 957, ...


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