United States v. Gutierrez

          OPINION & ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE.

         The matter comes before the Court on Defendant Sergio Saldivar Gutierrez's Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255, ECF No. 142. The Court finds that this matter appropriate for resolution without a hearing and the motion is DENIED.

         BACKGROUND

         In October 2011, Gutierrez entered a guilty plea to a charge of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). ECF No. 69. As part of the plea deal, Gutierrez agreed that he had at least three predicate convictions for violent felonies under the Armed Career Criminal Act ("ACCA"). In November 2011, Senior District Judge Owen M. Panner sentenced Gutierrez to the ACCA mandatory minimum sentence of 180 months.^[1] ECF Nos. 92, 93.

         At the time of his plea and sentencing, Gutierrez had the following relevant predicate convictions for purposes of the ACCA:

1. A California conviction for Assault with a Deadly Weapon in violation of Cal. Penal Code § 245(a)(2) in the Los Angeles County Superior Court. Judgment was entered August 30, 1990. Def. Mot. Ex. A, at 11; Plea Pet. 2, ECF No. 73.

2. A California conviction for Attempted Murder in violation of Cal. Penal Code § 664/187(a) and Assault with a Deadly Weapon in violation of Cal. Penal Code § 245(a)(2) in the Los Angeles County Superior Court. Judgment was entered April 15, 1992. Def. Mot. Ex. A, at 12; Plea Pet. 2.

3. A California conviction for Assault with a Deadly Weapon in violation of Cal. Penal Code § 245(a)(1) in the Los Angeles County Superior Court. Judgment was entered May 30, 2000. Def. Mot. Ex. A, at 13; Plea Pet. 2.

4. A California conviction for Assault with a Deadly Weapon in violation of Cal. Penal Code § 245(a)(2) in the Los Angeles County Juvenile Court. Judgment was entered February 27, 1987. Def. Mot. Ex. A, at 10; Plea Pet. 2.

         Gutierrez did not file a direct appeal of his sentence. In 2015, the United State Supreme Court issued its decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) (Johnson IT), which held that the residual clause of the Armed Career Criminal Act was void for vagueness. In 2016, the Supreme Court held that the Johnson II decision was retroactively applicable to cases on collateral review. Welch v. United States, __U.S.__, 136 S.Ct. 1257, 1268 (2016). This motion followed.

         LEGAL STANDARDS

         Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:

[T]he 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(a).

         To warrant relief, a petitioner must demonstrate that the error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").

         A petitioner seeking relief under § 2255 must file his motion within the one-year statute of limitations set forth in § 2255(f), The limitations period runs one year from the latest of four dates: (1) when the judgment of conviction became final; (2) when the impediment to making a motion created by 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) when the right asserted is 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; and (4) when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

         Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief" United States v. Blaylock,20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in original) (quoting 28 U.S.C. § 2255). In determining whether a § 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Withers,638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal quotation marks and citation omitted). A district court may dismiss a § 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.5" Id. at 1062-63 (quoting United ...