United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
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. 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
Law Applicable to Motions Pursuant to 28 U.S.C. §
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.
§ 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).
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).
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).
Factual and Procedural Background
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
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.
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.
Government's Motion to Dismiss
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, ...