Reyes-Prado v. USA

Filing 11

ORDER DENYING WITH PREJUDICE PETITIONER'S MOTION FOR TIME REDUCTION BY AN INMATE IN FEDERAL CUSTODY UNDER TITLE 28 U.S.C. § 2255 by Judge Christina A. Snyder. (Please see order for details) (kpa)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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UNITED STATES OF AMERICA,
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Plaintiff/Respondent, )
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vs.
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JESUS MARTIN REYES-PRADO,
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Defendant/Petitioner. )
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_________________________________ )
I.

Case No. ED CV 08-1047-CAS
ED CR 8-01-CAS
ORDER DENYING PETITIONER’S
MOTION FOR TIME REDUCTION
BY AN INMATE IN FEDERAL
CUSTODY UNDER TITLE 28 U.S.C.
§ 2255

INTRODUCTION
Defendant-Petitioner Jesus Martin Reyes-Prado (“petitioner”) is currently serving

a forty-six month term of imprisonment imposed by the Court based upon his guilty
plea to a violation of 8 U.S.C. § 1326(a) in United States v. Jesus Martin Reyes-Prado,
ED CR No. 8-01-SGL. On August 4, 2008, petitioner filed a motion for relief pursuant
to 28 U.S.C. § 2255. On June 30, 2009, the government (“respondent”) filed an
opposition to petitioner’s motion.
Having carefully considered both parties’ arguments the Court finds and
concludes as follows.

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II.

BACKGROUND
According to respondent, petitioner is a citizen of Mexico and an alien of the

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United States. Opp., Exh 1. at 4. On or about October 4, 1996, petitioner was

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convicted of First Degree Burglary in the Superior Court of California in the County of

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Riverside, and sentenced to twenty-four months in prison. Id. On or about January 29,

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2001, the same court convicted petitioner of Possession of a Controlled Substance for

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Sale, a drug trafficking offense. Id. Petitioner was sentenced to thirty-two months

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imprisonment. Id. On or about December 15, 2003, petitioner was convicted of

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Improper Entry by an Alien, in violation of 8 U.S.C. § 1325, in the United States

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District Court for the Central District of California. Id. Petitioner received a sentence

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of thirty months imprisonment as a result of the conviction. Id.

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On or about November 1, 2000, petitioner was lawfully deported or removed

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from the United States. Id. On or about April 4, 2006, petitioner knowingly and

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voluntarily re-entered and remained in the United States without the consent of the

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Attorney General or his designated successor, the Secretary of Department for

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Homeland Security, or of any authorized representative of either the Attorney General

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or that Department, to reapply for admission or to otherwise re-enter and remain in the

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United States. Id. at 4-5. On December 5, 2007, immigration authorities found

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petitioner in Riverside County, within the Central District of California. Id.

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On January 4, 2008, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),

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petitioner entered into a “fast-track” plea agreement with respondent and pled guilty to

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one count of Illegal Alien Found in the United States Following Deportation, in

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violation of 8 U.S.C. §§ 1326(a). Opp. at 1. The parties agreed that it would be

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appropriate for petitioner to receive a sentence at the low end of the range determined

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by an offense level of 17 and a criminal history category of V. Opp., Exh. 1 at 7; Opp.,

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Exh. 2 at 2. The offense level of 17 included a 16-level enhancement for a prior

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deportation or removal after conviction for a felony that is a drug trafficking offense,

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plus a 4-level reduction for early disposition pursuant to U.S.S.G. § 5K3.1 and 3-level
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reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), (b). Opp.,

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Exh. 1 at 7. On April 7, 2008, Judge Stephen G. Larson of the Eastern Division of this

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Court accepted petitioner's guilty plea and sentenced petitioner to forty-six months in

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prison, followed by a three-year term of supervised release.

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III.

LEGAL STANDARD
A motion pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or

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sentence to confinement where a prisoner claims “that the sentence was imposed in

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violation of the Constitution or laws of the United States, or that the court was without

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jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

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authorized by law, or is otherwise subject to collateral attack.” Sanders v. United

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States, 373 U.S. 1, 2 (1963).

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Section 2255 provides that the Court shall conduct a hearing on a motion filed

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thereunder “[u]nless the motion and files and records of the case conclusively show that

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the [petitioner] is entitled to no relief.” Rule 8 of the Rules Governing § 2255

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Proceedings provides that:

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[i]f the motion has not been dismissed at a previous stage in the

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proceeding, the judge, after the answer is filed and any transcripts or

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records of prior court actions in the matter are in his possession, shall,

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upon a review of those proceedings and of the expanded record, if any,

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determine whether an evidentiary hearing is required. If it appears that an

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evidentiary hearing is not required, the judge shall make such disposition

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of the motion as justice dictates.

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The decision whether to hold a hearing is “committed to the court’s discretion,”

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and § 2255 “requires only that the judge give the prisoner’s claim careful consideration

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and plenary processing, including a full opportunity for presentation of the relevant
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facts.” Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (citation and internal

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quotation marks omitted).
A petitioner arguing ineffective assistance of counsel under the Sixth

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Amendment must show (1) that counsel’s representation fell below an objective

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standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the

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petitioner. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland v.

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Washington, 466 U.S. 668, 688, 695 (1984)). To meet the first requirement, a petitioner

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must show that counsel's representation were not reasonable under prevailing

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professional norms. Strickland, 466 U.S. at 688. There is a heavy burden associated

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with this requirement, as there is “a strong presumption that counsel’s conduct falls

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within the wide range of reasonable professional assistance.” Id. at 689. To meet the

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second requirement, a petitioner “must show that there is a reasonable probability that,

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but for counsel's unprofessional errors, the result of the proceeding would have been

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different.” Id. at 694. Essentially, the moving party must affirmatively prove that the

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result would have been more favorable to the petitioning petitioner had counsel acted

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differently. Id.; see also Syers v. Schriro, 547 F.3d 1026, 1030 n.5 (9th Cir. 2008)

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(“Generally, a petitioner claiming ineffective assistance of counsel for failure to file a

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particular motion must not only demonstrate a likelihood of prevailing on the motion,

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but also a reasonable probability that the granting of the motion would have resulted in

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a more favorable outcome in the entire case.”).

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IV. DISCUSSION

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Petitioner moves the Court to reduce his sentence on the ground that his

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deportable alien status renders him ineligible for benefits available to United States

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citizens, such as sentence reductions through drug programs, release to a minimum

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security facility or community correctional center (“halfway house”), and obtainment of

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Unicor jobs. Mot. at 1-2.

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In his § 2255 motion, petitioner seeks relief under three federal constitutional and

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statutory rights: the Fourteenth Amendment's Equal Protection Clause, the Fifth

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Amendment's Due Process Clause, and the Equal Rights Act of 1964. Id. at 2.

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Petitioner additionally references an “Attorney General Memorandum dated April 28,

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1995,” through which the United States Attorney can purportedly “offer up to two (2)

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points downward departure if defendant accepts a final deportation order.” Id. at 1.

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Respondent argues that the Court should dismiss the petition on the following

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grounds: (1) Petitioner waived his right to collaterally attack his sentence by entering

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into a plea agreement; (2) Petitioner’s claim was not raised on direct appeal, and is

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therefore waived; and (3) Petitioner should have filed his motion in the district of

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incarceration. Opp. at 1-3. Respondent also alleges that insofar as his petition

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addresses the execution of his sentence and not the sentence itself, it should have been

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filed under 28 U.S.C. § 2241 rather than § 2255. Id. at 3. In the alternative to

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dismissal, respondent argues, the Court should deny the petition on the merits.

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The plea agreement reads: “[Petitioner] gives up the right to appeal any sentence

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imposed by the Court and the manner in which the sentence is determined, provided the

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sentence does not include a criminal fine and requires a term of imprisonment no

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greater than that specified in paragraph 12 above, and with the exception that the

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defendant reserves the right to appeal the calculation of defendant’s criminal history

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category. [Petitioner] also gives up any right to bring a post-conviction collateral attack

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on the conviction or sentence, except a post-conviction collateral attack based on a

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claim of ineffective assistance of counsel, a claim of newly discovered evidence, or an

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explicitly retroactive change in the applicable Sentencing Guidelines, sentencing

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statutes, or statutes of conviction.” Opp., Exh. 1 at 12.

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According to respondent, the Court imposed the sentence requested by the plea

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agreement, and the collateral attack waiver is therefore effective. Opp. at 2.

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Respondent claims that petitioner’s request for a sentence reduction is not based on any

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of the excepted grounds, and are accordingly waived. Id.
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The Court agrees with respondent. Petitioner entered into a “fast-track” plea

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agreement with respondent pursuant to Fed. R. Crim. P. 11(c)(1)(C). The terms of the

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plea agreement, quoted above, unambiguously state that petitioner gives up his right to

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appeal his sentence and waives any right to bring a post-conviction collateral attack on

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his conviction or sentence. See Opp., Exh. 1 at 12.

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“The Ninth Circuit recognizes strong public policy considerations justifying the

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enforcement of a defendant's waiver of his right to appeal or collaterally attack a

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judgment.” Franco-Guillen v. United States, 2011 WL 455222, at *1 (S.D. Cal. Feb. 3,

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2011); see United States v. Novarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990)

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(“knowing and voluntary constitutional waivers do not violate due process.”).

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Furthermore, petitioner does not request a sentence reduction based on any of the

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excepted grounds, such as ineffective assistance of counsel, newly discovered evidence,

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or a retroactive change in the applicable Sentencing Guidelines, sentencing statutes, or

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statutes of conviction. See Opp, Exh. 1 at 12. The Court finds that by entering into the

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plea agreement with respondent pursuant to Fed. R. Crim. P. 11(c)(1)(C), petitioner

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knowingly and voluntarily waived his right to collaterally attack his sentence.

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Accordingly, the Court must deny his§ 2255 motion.1

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The Court additionally finds that petitioner has procedurally defaulted on his

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equal protection and due process claims. “Claims that could have been raised on

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appeal, but were not, are procedurally defaulted.” United States v. Rodriguez-

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Palomares, 2008 WL 4691843, at *1 (S.D. Cal. Oct. 22, 2008); see Bousley v. United

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States, 523 U.S. 614, 621-22 (1998) (habeas review is an extraordinary remedy and will

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The Court notes that, insofar as petitioner’s motion challenges “the manner,
location, or conditions of a sentence’s execution,” it should have been brought more
properly under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.
2000). Nevertheless, the Court finds that petitioner’s motion is without merit and would
fail whether brought under § 2255 or § 2241.
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not be allowed to substitute for an appeal). The Court finds that petitioner has waived

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these claims by failing to appeal them directly in the first instance. Id.

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Moreover, the Court finds that petitioner’s equal protection and due process

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claims fail on the merits. Bureau of Prison (“BOP”) policies preventing deportable

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aliens from participating in certain programs survive constitutional challenge. See

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McLean v. Crabtree, 173 F.3d 1176, 1186 (9th Cir.1999). In McLean, the Ninth Circuit

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found that BOP exclusion of prisoners with detainers from community-based program

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based on petitioners' alien status did not violate equal protection. Id. “The BOP

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reasoned that prisoners with detainers pose a flight risk during the community-based

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treatment phase because they are subject to possible deportation upon release from

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custody, and therefore have reason to flee a halfway house.” Id.

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The Ninth Circuit also rejected the petitioners' due process claim, finding that

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denial of the one year reduction does not “impose[ ] atypical and significant hardship on

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the inmate in relation to the ordinary incidents of prison life.” Id. at 1185, citing Sandin

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v. Conner, 515 U.S. 472, 484, (1995). “In fact, denial merely means that the inmate

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will have to serve out his sentence as expected.” Id.

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In accordance with the foregoing, the court hereby DENIES petitioner’s § 2255
motion with prejudice.

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IT IS SO ORDERED.

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Dated: July 18, 2011

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CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE

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