Opinion
Case Nos. CR01-097-S-EJL, CV 04-631-S-EJC.
December 23, 2004
ORDER
On November 22, 2004, Petitioner filed a motion in light of new case law seeking a reduction in his sentence pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004). On November 30, 2004 the Court deemed this a § 2255 motion and given Petitioner notice of such. (Docket No. 854). Petitioner had twenty days in which to object. On December 20, 2004 Petitioner filed a motion entitled motion to vacate or reduce sentence pursuant to 28 U.S.C. § 2255 and memorandum in support. (Docket No. 857).
1) Timeliness of Motion:
The Petitioner was sentenced by this Court on April 30, 2002, to 97 months imprisonment on four counts 1) conspiracy to distribute methamphetamine/marijuana, 2) two counts of drug possession with intent to distribute and/or distribution of methamphetamine, and 3) illegal re-entry. (Docket No. 690). The Petitioner had ten days to file an appeal. No direct appeal was filed by Petitioner.
Pursuant to the amendment of 28 U.S.C. § 2255 in 1996 as part of the Anti-Terrorism and Effective Death Penalty Act, there is now a one (1) year limitation on the filing of a § 2255 motion. Section 2255 states in part:
A 1-year period of limitations shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by the governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Equitable tolling of the statute of limitation is available only when "`extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997). See also Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (equitable tolling is appropriate only "[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim"). No extraordinary circumstances have been presented in the § 2255 motion or the motion to file a supplemental memorandum.
It appears from the record, the § 2255 petition is time barred as it should have been filed within one year of the expiration of the appeal period on the amended judgment. Further, equitable tolling does not save the petition. The Blakely decision did not create a new right and such decision was not made retroactive by the Supreme Court. Blakely is not a new rule of Constitutional law; it is an application of Apprendi v. New Jersey, 530 U.S. 466 (2000). "This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Blakely v. Washington, at 2536. The Apprendi decision was issued prior to the indictment being filed in the case at bar, so any possibleApprendi or Blakely claim could have been raised at the time of sentencing or within the one-year statute of limitation for a Section 2255 motion and does not justify tolling the statutory one-year statute of limitations. Additionally, the Ninth Circuit's ruling in United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002) held that Apprendi did not apply retroactively to cases on collateral review. Therefore, this Court finds no legal support to equitably toll the one-year statute of limitation.
The Court acknowledges it should not sua sponte dismiss a § 2255 petition without giving the Petitioner the opportunity to respond to the Court's timeliness evaluation. United States v. Herbst, 260 F.3d 1039, 1043 (9th Cir. 2001). It is the prisoner's burden to demonstrate that extraordinary circumstances exist. United States v. Marolf, 173 F.3d 1213, 1218 n. 3 (9th Cir. 1999). The timeliness issue, however, is not being raised sua sponte by the Court since Petitioner was given notice of the Court's intent to deem his motion a § 2255 and the Defendant did not object but instead filed the identical briefing changing only the title of the motion to a § 2255 petition.
2) Application of Blakely:
Even assuming for argument sake that the Blakely decision tolled the statute of limitations for Petitioner's Section 2255 motion, it does not appear there is a Blakely issue in the facts of this case. The lowest maximum imprisonment sentence for a drug conviction under 21 U.S.C. Section 841(a) is 5 years pursuant to 21 U.S.C. 841(b)(1)(D). The Petitioner was sentenced to 97 months which is less than the maximum terms of imprisonment for three of the four charges. Moreover, the amount of drugs this Petitioner was held responsible for by the Court was admitted to in the plea agreement and not objected in the presentence report. Since Petitioner did not contest the amount of drugs and admitted the same in the plea agreement and was sentenced to less than the statutory maximum, there does not appear to be a Blakely issue to raise in this case as Petitioner's sentence was not increased beyond the applicable statutory maximum. Petitioner's argument that the sentencing guidelines are unconstitutional as a result of Blakely is unpersuasive.
Petitioner argues the failure of his counsel to challenge the amount of the drugs constitutes ineffective assistance of counsel. Specifically, Petitioner asserts his counsel represented that he would only be subject to approximately two years incarceration based upon the amount of drugs. A Petitioner claiming ineffective assistance of counsel must allege specific facts which, if proved, would demonstrate that (1) counsel's actions were "outside the wide range of professionally competent assistance," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Mere conclusory allegations do not prove that counsel was ineffective.See McNeely v. Olivarez, 104 F.3d 365, 365 (9th Cir. 1996) (citing Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995)). A defendant fails to state a claim for ineffective assistance if he fails to allege facts sufficient to meet either the "performance" or "prejudice" prong, and the district court may summarily dismiss his claim. A review of the record, reveals Petitioner's claims are without merit. The Court properly determined Petitioner had reviewed the presentence report with counsel, Petitioner has failed to show the Court relied on inaccurate information in the presentence report, and Petitioner's remaining claims have been previously addressed.
The Court inquired of Petitioner whether he had an opportunity to review the presentence report and addendum to that report with your counsel to which Petitioner responded in the affirmative. Petitioner has also failed to show the presentence report contained materially false or unreliable information or that the Court relied on such information as a basis for imposing the sentence. The Supreme Court has held that a sentence imposed on the basis of erroneous information violates due process. See Townsend v. Burke, 334 U.S. 736, 741 (1948); see also Farrow v. United States, 580 F.2d 1339, 1358 (9th Cir. 1978) (en banc). In order to establish improper reliance on false information warranting habeas corpus relief, "the appellant must show that the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." United States v. Lewis, 880 F.2d 243, 246 (9th Cir. 1989) (citations and quotations omitted). In order to meet this burden, a defendant "must cite where it affirmatively appears in the record that the court based its information on improper information." Id. (quotation omitted). Petitioner's failure to raise these claims on direct appeal results in a waiver of his right to assert the claims on collateral review. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995) (nonconstitutional sentencing errors not raised on direct appeal are waived and generally may not be reviewed by way of a § 2255 motion). Based on the foregoing the Court finds these claims are without merit and otherwise procedurally barred.
ORDER
IT IS HEREBY ORDERED that Petitioner's Section 2255 Motion (Docket No. 852) is DENIED.