Munoz v. USA

Filing 18

ORDER denying petitioner's motion to vacate, set aside or correct sentence (Doc. 1) and denying petitioner's motion to amend. IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis on appeal because petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Frederick J Martone on 12/30/13. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Victor Munoz,
Petitioner,

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vs.

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United States of America,
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Respondent.
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No. CV-12-02240-PHX-FJM
No. CR-09-00784-1-PHX-FJM
ORDER

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The court has before it petitioner’s motion to vacate, set aside or correct sentence

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pursuant to 28 U.S.C. § 2255 (doc. 1), respondent’s response (doc. 9), and the report and

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recommendation of the United States Magistrate Judge recommending that the motion be

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denied (doc. 12).

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recommendation (doc. 17), and petitioner’s motion for leave to amend his § 2255 motion

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(doc. 15).

We also have before us petitioner’s objection to the report and

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Petitioner was found guilty by a jury of conspiracy to possess with intent to distribute

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cocaine, possession of a firearm, and felon in possession of a firearm, and was sentenced to

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a total of 180 months imprisonment. Petitioner asserts one ground for relief—that he was

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denied effective assistance of counsel when his lawyer failed to inform him of the deadline

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to accept the government’s proposed plea agreement. He asserts that he wanted to accept the

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plea agreement, but his lawyer advised him against it, and that by following his lawyer’s

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advice and not signing the plea, he received an additional five years in prison.

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In his only objection to the report and recommendation, petitioner argues that he was

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prejudiced by following counsel’s advice not to accept the plea agreement. He contends that

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he would have pled guilty instead of going to trial but for counsel’s ineffective assistance.

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We need not reach the prejudice prong of the Strickland analysis, however, because we agree

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with the Magistrate Judge’s conclusion that counsel’s performance was not deficient. The

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Magistrate Judge found that counsel exercised reasonable professional judgment in assuming

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that the Government would not withdraw the plea offer. Moreover, petitioner was physically

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present at the final pretrial conference when government counsel stated in open court that the

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plea agreement would be withdrawn if it was not signed that day. Therefore, after a de novo

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review, we accept the decision of the United States Magistrate Judge recommending that the

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motion to vacate, set aside or correct sentence be denied (doc. 12).

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Petitioner also moves to amend his §2255 motion in order to assert two new grounds

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for relief. A petition under 28 U.S.C. § 2255 must be filed within one year from “the date

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on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Petitioner’s

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conviction became final on October 27, 2011, when the Ninth Circuit denied his appeal.

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Petitioner filed his motion to amend his habeas petition on December 18, 2013, more than

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one year after the statute of limitations expired. Therefore, unless petitioner’s proposed

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amendments relate back to the date of the original petition, they are barred by the one-year

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statute of limitations.

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Rule 15(c)(1)(B), Fed. R. Civ. P., provides that an amendment of a pleading relates

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back to the date of the original pleading when the claim or defense asserted in the amended

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pleading “arose out of the conduct, transaction, or occurrence set out–or attempted to be set

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out–in the original pleading.” The Supreme Court has rejected a broad reading of “conduct,

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transaction, or occurrence” when determining whether an amended habeas petition relates

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back to the original. Mayle v. Felix, 545 U.S. 644, 649, 125 S. Ct. 2562, 2566 (2005). The

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Court held that an amended petition does not relate back “when it asserts a new ground for

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relief supported by facts that differ in both time and type from those the original pleading set
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forth.” Id.

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Petitioner seeks to add two new grounds for relief. First, he claims that his conspiracy

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conviction was unlawful because his agreement to join the conspiracy was induced under

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false pretenses by a federal agent, rendering the agreement void or invalid. Second,

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petitioner seeks to add a claim of ineffective assistance of counsel for his counsel’s failure

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to request a jury instruction that he cannot “conspire” with a government agent. Both of

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these new grounds for relief are supported by facts that differ both in time and type from

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those set forth in the original petition. Therefore, these claims do not relate back to the

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original petition and are accordingly barred by the one-year statute of limitations.

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IT IS ORDERED DENYING petitioner’s motion to vacate, set aside or correct
sentence (doc. 1).

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IT IS ORDERED DENYING petitioner’s motion to amend (doc. 15).

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IT IS FURTHER ORDERED DENYING a certificate of appealability and leave

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to proceed in forma pauperis on appeal because petitioner has not made a substantial

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showing of the denial of a constitutional right.

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DATED this 30th day of December, 2013.

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