United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE [DOC. 80]
JAMES LORENZ UNITED STATES DISTRICT JUDGE
Roberto Rivera Casanova, a federal prisoner proceeding
pro se, filed a motion to vacate, set aside, or
correct his sentence pursuant to Title 28, United States
Code, § 2255 (the “Petition”). (See
Petition [ECF NO. 80].) Respondent United States of America
opposes. (See Opposition [ECF NO. 82].) For the
reasons discussed below, the Court DENIES
January 29, 2014, Customs and Border Protections Officers
arrested Petitioner after 38 kilograms of cocaine, 6.81
kilograms of pure methamphetamine and 1 kilogram of heroin
were discovered in hidden compartments in his car.
Petitioner's wife and three children under the age of
thirteen were also in the car with him. Petitioner was
charged with importation of cocaine and methamphetamine, in
violation of 21 U.S.C. §§ 952 and 960.
November 3, 2014, Petitioner pleaded guilty pursuant to a
plea agreement for knowingly importing methamphetamine into
the United States in violation of 21 U.S.C. §§ 952
and 960. (See Plea Agreement [Doc. 38].) As part of
the plea agreement, Petitioner agreed to waive his right to
appeal and collaterally attack his conviction and sentence.
(See Id. at ¶ XI.) On April 13, 2015, this
Court sentenced Petitioner to 132 months in custody followed
by three years of supervised release. (See Judgment
appealed his sentence on April 21, 2015, raising two grounds:
(1) the district court erred by denying his fourth request
for a new attorney; and (2) the Court erroneously relied
solely on the amount of drugs in Petitioner's possession
when it denied a minor-role adjustment. (See Notice of
Appeal [ECF NO. 53].) The Ninth Circuit affirmed
Petitioner's sentence in a memorandum disposition.
See United States v. Rivera Casanova, 15-50180
(9th Cir. 2016) [ECF NO.76]. Petitioner filed a
writ of certiorari with the United States Supreme Court which
was denied on October 2, 2017. See # 45 Ninth
filed the current motion pursuant to section 2255 on December
24, 2018. On February 7, 2019, Respondent filed a response in
28 U.S.C. § 2255, a federal sentencing court is
authorized to discharge or re-sentence a defendant 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.” 28
U.S.C. § 2255.
remedy available under § 2255 is as broad and
comprehensive as that provided by a writ of habeas corpus.
See United States v. Addonizio, 442 U.S. 178, 184-85
(1979). But this remedy does not encompass all claimed errors
in conviction and sentencing. Id. at 187. A mere
error of law does not provide a basis for collateral attack
unless the claimed error “resulted in a complete
miscarriage of justice or in a proceeding inconsistent with
the rudimentary demands of fair procedure.”
Hamilton v. United States, 67 F.3d 761, 763-64 (9th
Cir. 1995) (quoting United States v. Timmreck, 441
U.S. 780, 783-84 (1979)).
defendant can waive the right to collaterally attack his
conviction and sentence if the waiver is knowingly and
voluntarily made. United States v. Leniear, 574 F.3d
668, 672 n.3 (9th Cir. 2009). However, a defendant may
collaterally attack his sentence via §2255 if he raises
a claim of ineffective assistance of counsel. United
States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
Timeliness and Waiver
primary matter, the government contends that the Petition
must be denied because it was filed past the one-year statute
of limitations that applies ...