Opinion
CR. No. S-01-358 WBS.
March 12, 2007
ORDER
The government's motion to dismiss defendant Hector Hernandez's "motion for immediate correction of presentence investigation report" must be granted for three reasons.
First, in his written plea agreement Hernandez expressly waived "all rights to appeal [his] plea and sentence and to attack collaterally [his] plea and sentence whether by way of a motion pursuant to 28 U.S.C. § 2255 or otherwise, so long as the defendant's sentence does not exceed ten years in prison." Such agreements are enforceable. United States v. Nunez, 223 F.3d 956 (9th Cir. 2000). Hernandez's sentence did not exceed ten years. Thus, he waived any right to collaterally attack his sentence in this or any other type of proceeding.
Second, Hernandez expressly brings his motion under Rule 32 of the Federal Rules of Criminal Procedure. The time to bring a Rule 32 motion expired 14 days after receipt of the presentence report, and the defendant cannot challenge his sentence under Rule 32 after sentence has been imposed. United States v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989).
Third, if Hernandez's motion is construed as one for relief under 28 U.S.C. § 2255, it is untimely. By the terms of the statute, absent one of the limited exceptions not applicable here, a § 2255 motion must be filed within one year of the date judgment of conviction becomes final. Further, a second or successive petition may not be filed under § 2255 unless authorized by the Court of Appeals pursuant to 28 U.S.C. § 2244. Hernandez filed an earlier "motion for reconsideration of sentencing" on February 28, 2005, which the court dismissed on June 9, 2005. This court issued a certificate of appealability from that order, and the Ninth Circuit summarily affirmed on January 27, 2006 (No. 05-16384). If construed as a motion under § 2255, this is therefore a successive petition, and Hernandez's present motion must also fail for lack of a certificate of appealability.
IT IS THEREFORE ORDERED that the government's motion to dismiss be, and the same hereby is, GRANTED;
AND IT IS FURTHER ORDERED that defendant Hector Hernandez's motion for immediate correction of presentence investigation report be, and the same hereby is DISMISSED.