United States District Court, D. Oregon, Medford Division
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 ...