United States District Court, S.D. California
ORDER DENYING AS MOOT PETITIONER'S MOTION TO
VACATE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. §
2255
JOHN
A. HOUSTON, UNITED STATES DISTRICT JUDGE
INTRODUCTION
This
matter comes before the Court on Petitioner Roberto
Flores-Ramirez's (“Petitioner”) motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. See Doc. No. 25. Respondent
United States of America filed a Response in Opposition to
Petitioner's motion. Doc. No. 27. Under Rule 4 of the
Rules Governing § 2255 Proceedings, this Court may
dismiss a § 2255 motion if it “plainly
appears” from the motion, attached exhibits, and the
record of prior proceedings, that petitioner is not entitled
to relief. See Rule 4 of the Rules Governing § 2255
Proceedings; see also United States v. Blaylock, 20
F.3d 1458, 1465 (9th Cir. 1994). Having thoroughly considered
the parties' briefing, the relevant record, and, in
accordance with Rule 4, the Court DENIES as
moot Petitioner's motion.
BACKGROUND
On
April 25, 2014, Petitioner, with the advice and consent of
counsel, signed a plea agreement, admitting that he
unlawfully re-entered the United States in violation of 8
U.S.C. § 1326. See Doc. No. 9. Specifically,
Petitioner admitted as “true and undisputed” that
on or about September 21, 2013, Petitioner was previously
excluded, deported, and removed from the United States to
Mexico and then was subsequently found in the United States.
See id.
On May
6, 2014, a change of plea hearing was held before Magistrate
Judge Nita L. Stormes. See Doc. Nos. 6, 11. The
magistrate judge also determined that Petitioner's guilty
plea was made knowingly and voluntarily, and did not result
from force, threats, or promises. Doc. No. 10. On July 25,
2014, Petitioner was sentenced to 27-months in custody
followed by two years of supervised release. See
Doc. No. 17. Judgment was entered on July 29, 2014.
See Doc. No. 18.
Then,
on December 3, 2015, Petitioner, proceeding pro se,
filed a habeas motion with the Ninth Circuit on the
grounds of newly discovered evidence. Doc. No. 19. On January
6, 2016, the Ninth Circuit determined his appeal was untimely
and dismissed Petitioner's case without prejudice.
See Doc. Nos. 22, 23, 24. On June 6, 2016,
Petitioner, proceeding pro se, filed his motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 with the Court. See Doc. No. 25.
Respondent United States of America
(“Respondent”) filed a response in opposition on
January 9, 2017. See Doc. No. 27.
DISCUSSION
1.
Legal Standard
Under
28 U.S.C. § 2255, a federal prisoner may move the court
to vacate, set aside, or correct his sentence on the ground
that: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a); United States v. Speelman,
431 F.3d 1226, 1230 n.2 (9th Cir. 2005).
2.
Analysis
As a
threshold matter, the Court is aware that Petitioner was
released from Bureau of Prisons custody on June 2,
2017.[1] Accordingly, Petitioner's motion to
vacate, set aside, or correct his sentence must be
DENIED AS MOOT. United States v.
Kramer, 195 F.3d 1129 (9th Cir. 1999) (“[A]
defendant seeking relief under 28 U.S.C. § 2255 . . .
must be in custody, [and] . . . claim the right to be
released from custody.”). Nevertheless, even if
petitioner was still in custody, this Court would DENY his
claim for relief.
Petitioner
claims that he is entitled to relief based upon the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), and Welch v. United States,
136 S.Ct. 1257 (2016).
a.
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