United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
Harry Hintsala, filed a Motion to Vacate or Correct Sentence
pursuant to 28 U.S.C. § 2255 [ECF 48]. The United States
responded. Gov't. Resp. [ECF 74]. For reasons explained
below, Mr. Hintsala's § 2255 motion is DENIED for
failing to state a claim.
Hintsala was found guilty of five counts of Abusive Sexual
Contact, following a stipulated facts trial on May 9, 2012.
Verdict [ECF 36] at 1; Min. of Proceedings [ECF 37]. I
sentenced him to twenty-four months in prison on each count,
consecutively, for a total of 120 months-10 years-in prison.
J. & Commitment [ECF 42] at 2. That judgment was entered
on June 29, 2012.
Hintsala did not file any other substantive pleadings
following his conviction until June 26, 2019, when he filed
the § 2255 motion at issue here. Def.'s Mot. .
This filing comes seven years after Mr. Hintsala's
conviction was entered. In it, he asserts four claims for
relief: actual innocence, ineffective assistance of counsel,
prosecutorial misconduct, and judicial bias. Def.'s Mot.
 at 5-9. As explained below, none of Mr.
Hintsala's claims provide grounds for relief under §
person in custody under federal law may move to have his
sentence vacated on one of four grounds: (1) the sentence was
imposed in violation of the Constitution or laws of the
United States, (2) the court was without jurisdiction to
impose such sentence, (3) the sentence was in excess of the
maximum authorized by law, or (4) the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a). A
prisoner may bring a claim asserting ineffective assistance
of counsel under the Sixth Amendment for the first time on a
§ 2255 motion to vacate. U.S. v. Span, 75 F.3d
1383, 1386-87 (9th Cir. 1996).
Waiver of Collateral Attack
Hintsala was convicted following a stipulated facts trial,
which required him to sign a Sentencing Agreement ("the
Agreement"). [ECF 35]. In the Agreement, Mr. Hintsala
waived "the right to file any collateral attack,
including a motion under 28 U.S.C. § 2255, challenging
any aspect of the conviction or sentence on any grounds,
except on grounds of ineffective assistance of counsel."
Sentencing Agreement  at 4. Three of Mr. Hintsala's
claims for relief in this petition are barred by the
Agreement-actual innocence, prosecutorial misconduct, and
judicial bias. Mr. Hintsala does not explain why his waiver
would not bar these claims, and a knowing and voluntary
waiver of the right to appeal is enforceable. See U.S. v.
Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). I therefore
hold that, as an initial matter, Mr. Hintsala relinquished
his right to bring claims alleging prosecutorial misconduct
and judicial bias, and those claims are DISMISSED without
Mr. Hintsala also waived his right to bring his claim for
actual innocence, but I will consider that claim on its
merits, at least to a limited extent. A claim of actual
innocence is treated as somewhat distinct from other claims
that may be brought on collateral attack. Murray v.
Carrier, 477 U.S. 478, 496 (1986) ("[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default."). Additionally, in this case, Mr. Hintsala
asserts an actual innocence claim as grounds to excuse his
procedural default in bringing this petition more than one
year after his conviction was final. I therefore consider the
claim, at least for that limited purpose.
Statute of Limitations
defendant seeking relief under § 2255 must file his
petition within one year of the date on which the judgment of
conviction becomes final. 28 U.S.C. § 2255(f)(1). If a
defendant does not seek direct appeal, a judgment of
conviction becomes final once the deadline for filing a
notice of appeal has expired. U.S. v. Gilbert, 807
F.3d 1197, 1200 (9th Cir. 2015). Here, the court entered Mr.
Hintsala's judgment on June 29, 2012. J. & Commitment
. Mr. Hintsala then had 14 days to file a notice of
appeal, which means that his judgment of conviction was final
on July 15, 2012. Fed. R. App. P. 4(b)(1)(A). His § 2255
petition is therefore in default of the statute of
limitations by approximately seven years. Def.'s Mot.
 at 1 ("Filed 6/26/19").
Hintsala provides two reasons why this court should excuse
his default. First, he argues that his actual innocence
provides him grounds for relief. Def.'s Mot.  at 34.
Second, he argues that his defense attorney's ineffective
assistance provides grounds for tolling the statute of
limitations. Id. at 35. For the reasons provided
below, I hold that neither of these reasons provides grounds