Opinion
CASE NO. 20-0292 RSM
02-27-2020
ALBERTO MARTINEZ LUIS, Petitioner, v. STATE OF WASHINGTON , Respondent.
REPORT AND RECOMMENDATION
Before the Court is Petitioner Alberto Martinez Luis' pro se motion brought under Federal Rule of Criminal Procedure 35(a) to correct the sentence he received in 2006 in King County Superior Court Case Number 05-1-07872-0-KNT. Dkt. 1. This is the second time petitioner challenges this conviction in this Court. Petitioner first challenged the conviction in 2009 when he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 under the name Luis Alberto Ulloa Martinez. See Martinez v. Sinclair, C09-456-RSM. In January 2013, the Court denied the habeas petition and dismissed the matter. Dkt. 61. In April 2013, the Court of Appeals for the Ninth Circuit denied petitioner's request for a certificate of appealability. Dkt. 64. / /
The Court having reviewed the motion recommends it be DENIED and DISMISSED with prejudice. If this recommendation is adopted, the Court also recommends the issue of whether petitioner may proceed in forma pauperis be stricken as moot.
Petitioner's motion should be denied because petitioner challenges a sentence imposed in a Washington state court under Federal Rule of Criminal Procedure 35(a), which applies only to federal criminal convictions. See Fed. R. Crim. P. 1 ("These rules govern the procedures in all criminal proceedings in the United States district courts."). Moreover, Rule 35(a) requires a motion to correct a sentence be brought within 14 days of sentencing. The 14 day provision is jurisdictional and the Court thus lacks the authority to alter petitioner's sentence which was imposed in 2006. See United States v. Feao, 708 Fed. Appx. 916 (9th Cir. 2018) ("Rule 35(a)'s 14-day window is jurisdictional. See United States v. Aguilar-Reyes, 653 F.3d 1053, 1056 (9th Cir. 2011.")). Accordingly, because relief is requested based upon a rule that is inapplicable to a sentence imposed in a state court, and because the motion was filed outside of the Court's jurisdiction, the Court recommends it be denied and dismissed with prejudice.
This Report and Recommendation is not an appealable order. Petitioner should not file a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit until the assigned District Judge enters a judgment in the case. Any objection to this report must be filed by March 12, 2020. The Clerk shall provide a copy of this report to petitioner and note the matter for March 13, 2020 as ready for the District Judge's consideration. Objections shall not exceed five pages. The failure to timely object may affect the right to appeal.
DATED this 27th day of February, 2020.
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge