United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO SET ASIDE,
CORRECT, OR VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255
RE: DKT NO. 55
ILLSTON United States District Judge
Aldo Martinez Contreras (“Defendant”) filed this
pro se motion to vacate, set aside, or correct a
sentence pursuant to 28 U.S.C. § 2255. For the reasons
discussed below, defendant's motion is DENIED.
is a citizen of Mexico. Dkt. No. 48. In 2001, defendant was
convicted in Napa County, California of two counts of
violating Cal. Pen. Code § 261(a)(3) (rape where a
person is prevented from resisting by intoxication or
anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known to
the accused). Id. Defendant pled no contest and was
sentenced to eight years in prison. Id. On October
4, 2004, defendant was released on parole, and on May 4,
2005, defendant was deported to Mexico. Dkt. Nos. 48, 66.
Defendant later reentered the United States without
authorization. On April 23, 2015, defendant was detained by
U.S. Immigration and Customs Enforcement (ICE) agents in Napa
County. Id. Defendant was subsequently charged with
illegal reentry in violation of 8 U.S.C. § 1326.
March 18, 2016, defendant pled guilty to the charge of
illegal reentry. Dkt. Nos. 46-47. The government recommended
a sentencing range of 41-51 months under the United States
Sentencing Guidelines (USSG). Dkt. Nos. 48, 50. The range was
based on a 16-level enhancement under USSG 2L1.2(b)(1)(A) for
defendant's 2001 state conviction involving an aggravated
felony. Dkt. Nos. 48, 50. Defendant requested a sentence of
24 months. Dkt. No. 49. This Court sentenced defendant to 28
months in prison. Dkt. No. 54. Defendant did not file a
April 17, 2017, defendant filed the present pro se
motion under 28 U.S.C. § 2255 claiming ineffective
assistance of counsel in connection with his 2001 state
conviction, which was the basis for his federal conviction.
Dkt. No. 55. The government opposed defendant's motion on
the grounds that: (1) the claim is untimely; (2) defendant
waived the right to bring such a claim when he made an
unconditional guilty plea; (3) defendant's motion does
not state a cognizable claim for relief; and (4)
defendant's motion should also be denied on the merits.
Dkt. No. 66. Defendant did not file a reply.
prisoner in custody under sentence of a federal court who
wishes to attack collaterally the validity of his conviction
or sentence must do so by filing a motion to vacate, set
aside or correct the sentence pursuant to 28 U.S.C. §
2255 in the court which imposed the sentence. 28 U.S.C.
§ 2255(a). Under 28 U.S.C. § 2255, the federal
sentencing court is authorized to grant relief if it
concludes 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.”
Id. § 2255(a). If the court finds that relief
is warranted under section 2255, it must “vacate and
set the judgment aside” and then do one of four things:
“discharge the prisoner[, ] resentence him[, ] grant a
new trial or correct the sentence as may appear
appropriate.” Id. § 2255(b); United
States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
section 2255 motion, defendant seeks to vacate his federal
conviction on the grounds that it was predicated on his state
conviction from 2001, which he alleges was unconstitutional.
Dkt. No. 55. Defendant claims that counsel in his state
court case was ineffective for failing to advise him of the
immigration consequences of his plea. Id. Defendant
alleges this rendered his 2001 no contest plea
government argues defendant is not entitled to relief for
four reasons. First, the government argues defendant's
claim is procedurally barred as it is untimely. Dkt. No. 66.
Second, the government argues defendant waived the right to
bring this claim when he entered an unconditional guilty plea
in his federal case. Id. Third, defendant's
motion does not state a cognizable claim for relief because
the claim is barred by the Supreme Court's decision in
Daniels v. United States, 532 U.S. 374, 382 (2001).
Id. Lastly, even if the Court were to reach the
merits of defendant's claim, the claim should be denied
as defendant has not provided evidence that his state case
plea would have been different if he had known of the
immigration consequences. Id. The Court declines to
reach the government's last argument because it agrees
that defendant waived the right to bring the present claim,
and the claim is nonetheless barred by the Supreme
Court's decision in Daniels. For the reasons set
forth below, the Court DENIES defendant's motion.
initial matter, the Court finds that defendant's motion
is timely. Title 28 U.S.C. § 2255(f) sets a
one-year limitation period to file a motion for relief under
the statute. This period runs from:
(1) the date on which the judgment of conviction becomes
final; (2) the date on which the impediment to making a
motion created by governmental action in violation of
[federal law] is removed, if the movant was prevented from
making a motion by such governmental action; (3) the date on
which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or (4) the date on ...