Rosales-Martinez v. USA

Filing 7

ORDERED that the government's request to dismiss the 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Pedro Rosales-Martinez is denied. The government's request to file a supplemental answer is granted; answer is due 4/11/2014. Supplemental reply due 5/16/2014. Signed by Judge Cindy K Jorgenson on 2/5/2014. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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UNITED STATES OF AMERICA,

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Plaintiff,

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vs.

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PEDRO ROSALES-MARTINEZ,

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Defendant/Movant.

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No. CIV 13-1066-TUC-CKJ
CR 06-1449-TUC-CKJ
ORDER

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Pending before the Court is the Motion to Vacate and Set Aside by Person in Federal
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Custody Pursuant to 28 U.S.C. § 2255 (Doc. 1). A response and reply have been filed.
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Procedural History
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On August 23, 2006, Pedro Rosales-Martinez ("Rosales-Martinez") was indicted on
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one count of Attempted Re-Entry after Deportation in violation of 8 U.S.C. § 1326, enhanced
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by 8 U.S.C. § 1326(b)(2), in CR 06-1449. The matter proceeded to a bench trial on April 17,
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2007. This Court found Rosales-Martinez guilty.
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After imposing a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
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based on Rosales-Matinez' conviction for attempted second-degree burglary in violation of
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A.R.S. § 13-1507, on October 23, 2007, this Court sentenced Rosales-Martinez to a term of
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sixty-five (65) months in the custody of the Bureau of Prisons to be followed by a thirty-six
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(36) month term of supervised release. An appeal was filed.
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The Ninth Circuit Court of Appeals issued its ruling on December 21, 2011. The

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court determined Rosales-Martinez' Arizona conviction for attempted second-degree burglary

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is not categorically a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). That court

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further determined that the documents considered by this Court under the modified

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categorical approach "do not establish that Rosales-Martinez formed the intent to commit the

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burglary before entering the structure, or that his entry was unlawful or unprivileged, or that

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he burgled an immovable structure." Reply, Ex. 1 (Doc. 6), pp. 2-3. The matter was vacated

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and remanded. On April 9, 2012, at the government's request, the appellate court amended

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its December 21, 2011, Memorandum to replace "vacated and remand" with "affirmed." The

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mandate was issued on January 24, 2013.

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After the Memorandum had been amended to reflect the matter was affirmed, on

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January 30, 2013, this Court ordered that Rosales-Martinez "and/or his attorney may apply

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to this Court to vacate his sentence and resentence him consistent with the decision of the

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Ninth Circuit Court of Appeals if [Rosales-Martinez] is available for resentencing." Doc. 73.

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On April 19, 2013, this Court set this matter for a re-sentencing hearing and directed counsel

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for the government to coordinate with defense counsel to parole Rosales-Martinez into the

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United States for his re-sentencing. On September 11, 2013, Rosales-Martinez was re-

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sentenced to a term of fifteen (15) months, with credit for time served, in the custody of the

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Bureau of Prisons. No appeal was filed.

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On September 5, 2013, prior to the re-sentencing, Rosales-Martinez filed a Motion

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to Vacate and Set Aside by Person in Federal Custody Pursuant to 28 U.S.C. § 2255. A

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response and a reply have been filed.

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Response by the Government

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The government has filed a response that only includes affirmative defenses. The

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government requests that, if the affirmative defenses are denied, it be allowed to file a

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supplemental answer. The Court finds it appropriate to consider the affirmative defenses.

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Timeliness of § 2255 Motion

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The government argues Rosales-Martinez' § 2255 motion is premature because the

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Ninth Circuit has reasoned that where the appellate court either partially or wholly reverses

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a conviction or sentence, or both, and expressly remands to the district court, “[u]ntil the

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district court enters an amended judgment of conviction [on remand], [a petitioner's] § 2255

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motion is in fact premature, rather than untimely” because the district court may not “review

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a section 2255 motion until the direct appeal is resolved.” United States v. LaFromboise, 427

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F.3d 680, 683–84 (9th Cir. 2005) (citations omitted).

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Rosales-Martinez, however, argues this case does not present a situation where the

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appellate court either partially or wholly reversed his conviction or sentence. Rather, at the

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government's urging, the appellate court amended its December 21, 2011, Memorandum to

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replace the words “vacated and remanded” with “affirmed.” The Court agrees with Rosales-

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Martinez that the factual posture discussed in LaFromboise is not present in this case. Here,

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the appellate court did not reverse Rosales-Martinez’ conviction or sentence and this Court

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is only now reviewing the § 2255 Motion – after the direct appeal has been resolved.

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Moreover, even if the appeal were still pending, a consideration of whether interests

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of judicial economy warrant refraining from resolving this § 2255 Motion would weigh in

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favor of resolving the § 2255 Motion. The Court considers that the § 2255 Motion only

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challenges the conviction rather than the sentence. In other words, there is no overlap of the

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issue presented on appeal. See United States v. Deeb, 944 F.2d 545 (9th Cir. 1991)

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(consideration of whether a §2255 motion raises the same issues as raised in appeal in

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determining whether § 2255 motion should be dismissed); United States v. Prows, 448 F.3d

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1223 (10th Cir. 2006) (district court should entertain § 2255 motion while appeal is pending

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only in extraordinary circumstances given potential conflict with the appeal). The Court also

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considers the circumstances of this case are sufficiently extraordinary, as alleged by Rosales-

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Martinez, to warrant resolving the § 2255 Motion. See United States v. Taylor, 648 F.2d 565,

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572 (9th Cir. 1981). Specifically, Rosales-Martinez asserts that because (1) the Ninth Circuit

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has held his Arizona conviction for attempted second-degree burglary did not qualify as a

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burglary under the federal generic definition and (2) this conviction was the sole “basis for

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the June 14, 2006 removal (and its underlying March 16, 2006 Order of removal) that was

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charged in the indictment to prove that required element of illegal reentry[,]” Motion (Doc.

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1), p. 4, Rosales-Martinez is factually innocent of the crime for which he was convicted.

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The Court finds the § 2255 Motion is not premature.

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Custody Status of Rosales-Martinez

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The government argues this Court lacks jurisdiction to hear the § 2255 Motion

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because Rosales-Martinez would not have been, was not, and is no longer in custody even

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if the § 2255 motion had been properly filed.

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The determination of whether a § 2255 movant is in custody is made at the time of the

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filing of the motion. United States v. Johnson, 557 F.Supp.2d 1066 (N.D.Cal. 2008). At the

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time Rosales-Martinez filed his § 2255 Motion, he was subject to a supervised release term

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and thus was in "custody." Matus-Leva v. United States, 287 F.3 758 (9th Cir. 2002); see

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also 176 A.L.R.Fed. 189. The Court finds it has jurisdiction over this matter.

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Writ of Coram Nobis

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Rosales-Martinez also contests the government's affirmative defenses by asserting that

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the Court could consider the claims and grant relief by treating the § 2255 Motion as a

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petition for writ of coram nobis. As the Court has determined Rosales-Martinez' § 2255

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Motion is not premature and this Court has jurisdiction over the matter, the Court declines

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to address this argument.

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Accordingly, IT IS ORDERED:

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1.

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The government's request to dismiss the Motion to Vacate and Set Aside by
Person in Federal Custody Pursuant to 28 U.S.C. § 2255 is DENIED.
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The government's request to file a supplemental answer is GRANTED.

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The government shall file any supplemental answer on or before April 11,

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2014.

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Rosales-Martinez shall file any supplemental reply on or before May 16, 2014.

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DATED this 5th day of February, 2014.

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