Opinion
Case No.: 3:16-cv-00537-BEN Case No.: 3:13-cr-04513-BEN
10-25-2018
EVA MADUENO, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Movant, Eva Madueno, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct her Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States ("the government"), filed a response, opposing the motion. For the reasons set forth below, the Court DENIES Movant's Motion.
BACKGROUND
On December 19, 2013, the government filed a one-count indictment charging Movant with violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and 846, Conspiracy to Possess with Intent to Distribute Controlled Substances, and 21 U.S.C. § 853, Criminal Forfeiture. (Doc. No. 1.) Movant entered into a plea agreement with the government, in which she "waive[d], to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order." (Doc. No. 49 at 8-9.) Movant thereafter pleaded guilty and came before this Court for sentencing. (Doc. Nos. 50, 56.)
All docket citations refer to the criminal case docket, No. 13-cr-04513-BEN-1.
The parties agreed to jointly recommend Movant's sentencing be based on the following U.S. Sentencing Guidelines Base Offense Level, Specific Offense Characteristics, Adjustments, and Departures:
| 1. Base Offense Level [USSG § 2D1.1(c)(11)] | 26 |
| 2. Drugs into Jail [USSG § 2D1.1(b)(4)] | +2 |
| 3. Acceptance of Responsibility [USSG § 3E1.1] | -3 |
On February 29, 2016, Movant filed the instant motion. (Doc. No. 73.) While it is not entirely clear from her motion, Movant appears to allege (1) that she was sentenced as a "career offender" in violation of her due process rights under the Fifth Amendment to the United States' Constitution, and (2) that she received ineffective assistance of counsel because her defense attorney "failed to file an appeal on her behalf." (Id. at 6.) In essence, Movant contends she is entitled to a reduced sentence pursuant to the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States, 163 S. Ct. 1257 (2016).
LEGAL STANDARD
The Court determines there is no need for an evidentiary hearing.
Under § 2255, a movant is entitled to relief if the sentence: (1) was imposed in violation of the Constitution or the laws of the United States; (2) was given by a court without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to state a claim, or has "no more than conclusory allegations, unsupported by facts and refuted by the record," a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
DISCUSSION
Movant's motion fails on several grounds. First, she validly waived her right to collaterally attack her sentence. The record discloses no issues as to the voluntariness of Movant's plea. Second, the Movant's motion is untimely as it was filed fifteen months after her conviction became final. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") instituted a one-year limitation for both state and federal prisoners to collaterally attack their sentences. Moreover, Movant failed to justify the untimeliness of her motion.
Third, contrary to her contentions, Movant's sentence was not unconstitutionally enhanced under Johnson or Welch. In Johnson, the Supreme Court considered language in the Armed Career Criminal Act ("ACCA"). The ACCA imposes a mandatory minimum sentence of 15 years for a defendant who violates 18 U.S.C. § 922(g) and "has three previous convictions by any court . . . for a violent felony or serious drug offense, or both." 18 U.S.C. § 924(e)(1). The Supreme Court examined the definition of "violent felony" and held that a portion of that definition known as the "residual clause" is void for vagueness. Imposing an increased sentence under the residual clause definition of "violent felony" violates the Constitution's guarantee of due process. 135 S. Ct. at 2563. The Supreme Court expressly confined its holding to this particular portion of the statute and confirmed that its holding does not apply to the "serious drug offense" clause or the remainder of the "violent felony" definition. (Id.)
In Welch, the Supreme Court considered whether Johnson was a substantive decision that is retroactive in cases on collateral review, 194 S. Ct. at 1261, and concluded that it was. (Id. at 1265.)
However, neither Johnson nor Welch are applicable because Movant was not sentenced under the residual clause of the violent felony definition of the ACCA. See United States v. Ruiz-Diaz, 668 F. App'x 289, 290 (9th Cir. 2016) ("Because the [sentencing] enhancement was not predicated on a residual clause like the one struck down in Johnson, there is no arguable issue as to whether [defendant's] sentence is illegal."). Rather, she was sentenced pursuant to 18 U.S.C. §§ 841 and 846 and USSG 2D1.1, which were not implicated by Johnson. See United States v. Padilla, No. 2:10-CR-00454-CAS, 2017 WL 962756, at *3 (C.D. Cal. Mar. 13, 2017) (finding Johnson inapplicable to petitioner's § 2255 petition because petitioner's "sentence was not based upon any guidelines that might have been implicated by Johnson.").
Movant's motion may be construed as challenging the U.S. Sentencing Guidelines as unconstitutionally vague based on the same reasoning as Johnson. (See generally Docket 73) (asserting her prior offenses fell within the "Residual Clause" discussed in Johnson and thus the Court should now modify her sentence under the Guidelines without considering those prior offenses.) However, the Supreme Court rejected such an argument in Beckles v. United States, 137 S. Ct. 886 (2017), holding that the federal sentencing guidelines are not subject to vagueness challenges under the due process clause. (Id. at 890, 892, 895.)
Movant's motion is not entirely coherent, but this inference of an underlying challenge to the U.S. Sentencing Guidelines constitutes the Court's best effort to understand her arguments. --------
Fourth, Movant contends her counsel "failed to file an appeal on her behalf." The allegation fails to identify what was requested of her attorney or whether she actually even discussed the issue with him. More importantly, it would not be ineffective assistance for her attorney to not appeal, where the defendant has validly waived her right to appeal. Here, Movant waived her right to appeal as part of her plea bargain. And after the Court pronounced sentence, Movant again waived her appeal rights in open court. (Doc. No. 72 at 16-17.)
Therefore, there are no arguable grounds as to whether Movant's sentence is illegal, the Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App'x at 290 (citing United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Alternatively, Movant's motion is denied on the merits.
CONCLUSION
The Motion to Vacate, Set Aside or Correct Sentence is DENIED.
A court may issue a certificate of appealability where the movant has made a "substantial showing of the denial of a constitutional right," and reasonable jurists could debate whether the motion should have been resolved differently, or that the issues presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). This Court finds that Movant has not made the necessary showing. A certificate of appealability is therefore DENIED.
IT IS SO ORDERED. Dated: 10/25/2018
/s/_________
HON. ROGER T. BENITEZ
United States District Court Judge