Casanova v. United States

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [DOC. 80]

          M. HON JAMES LORENZ UNITED STATES DISTRICT JUDGE

         Petitioner 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 the Petition.

         I. Background

         On 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.

         On 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 [Doc. 52].)

         Petitioner 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 (9^th 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 Circuit Docket.

         Petitioner filed the current motion pursuant to section 2255 on December 24, 2018. On February 7, 2019, Respondent filed a response in opposition.

         II. Legal Standard

         Under 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.

         The 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)).

         A 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).

         III. Discussion

         A. Timeliness and Waiver

         As a primary matter, the government contends that the Petition must be denied because it was filed past the one-year statute of limitations that applies ...