Ramirez-Ramirez v. USA

Filing 2

Order by Judge Lucy Koh Dismissing 1 Second Motion to Set Aside, Correct, or Vacate Sentence. (lhklc2S, COURT STAFF) (Filed on 6/20/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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RICARDO RAMIREZ-RAMIREZ,
Petitioner,

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Case No. 16-CV-02690-LHK
ORDER DISMISSING SECOND § 2255
MOTION TO SET ASIDE, CORRECT,
OR VACATE SENTENCE

v.
UNITED STATES OF AMERICA,

Re: Dkt. No. 1

Respondent.

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On May 18, 2016, Petitioner Ricardo Ramirez-Ramirez (“Petitioner”), proceeding pro se,

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filed a motion pursuant to 28 U.S.C. § 2255, which argues that his sentence should be recalculated

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in light of the California Superior Court’s December 2, 2015 decision to reduce Petitioner’s prior

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felony conviction to a misdemeanor. ECF No. 1 (“Petition”) at 2.

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This is the second § 2255 motion that Petitioner has filed. On July 17, 2013, Petitioner

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was sentenced to 47 months of imprisonment. On September 26, 2014, Petitioner filed his first §

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2255 motion, which contended that the Court erred “by failing to consider and explain why a term

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of supervision [sic] release was warranted in light of U.S.S.G. § 5D1.1.” United States of America

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v. Ramirez-Ramirez, No. 10-CR-0897, ECF No. 36 at 2. After receiving briefing from the parties,

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the Court denied this motion with prejudice on April 6, 2015. United States of America v.

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Case No. 16-CV-02690-LHK
ORDER DISMISSING § 2255 MOTION TO SET ASIDE, CORRECT, OR VACATE SENTENCE

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Ramirez-Ramirez, No. 10-CR-0897, ECF No. 49 (“First Habeas Order”).
The Ninth Circuit has held that “[a] habeas petition is second or successive . . . if it raises

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claims that were or could have been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028,

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1029 (9th Cir. 2009) (per curiam). “A disposition is ‘on the merits’ if the district court either

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considers and rejects the claims or determines that the underlying claim will not be considered by

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a federal court.” Id.

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In denying Petitioner’s first habeas petition, the Court noted that Petitioner accepted a plea

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agreement which included a provision stating that “I agree to waive any right I may have to file

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any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. § 2255 or
28 U.S.C. § 2241, except that I reserve my right to claim that my counsel was ineffective in

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United States District Court
Northern District of California

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connection with the negotiation of this Agreement or the entry of my guilty plea.” First Habeas

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Order at 2. As the Court further observed, “[a] defendant may expressly waive the statutory right

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to bring a Section 2255 motion challenging [his] conviction or sentence.” Id. at 7. “Two claims

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that cannot be waived, however, are that the waiver itself was involuntary or that ineffective

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assistance of counsel rendered the waiver involuntary.” Id. Petitioner’s first habeas petition,

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however, did not assert ineffective assistance of counsel and did not challenge the voluntariness of

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his plea waiver. Thus, Petitioner had, pursuant to his plea waiver, “knowingly and voluntarily

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waived the right to collaterally attack his sentence.” Id. at 8.

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The instant Petition also does not assert ineffective assistance of counsel and does not

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challenge the voluntariness of Petitioner’s plea waiver. Instead, the crux of the instant Petition is

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that the Court should recalculate Petitioner’s sentence in light of the California Superior Court’s

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decision to reduce Petitioner’s prior felony conviction to a misdemeanor. The instant Petition

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therefore raises a type of claim that was already considered and rejected on the merits by this

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Court, and the instant Petition thus constitutes a second or successive habeas petition. See

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McNabb, 576 F.3d at 1029 (finding habeas petition to be second or successive because, as in first

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habeas petition, second petition presented claims that were untimely).

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On second or successive habeas petitions, the Antiterrorism and Effective Death Penalty
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Case No. 16-CV-02690-LHK
ORDER DISMISSING § 2255 MOTION TO SET ASIDE, CORRECT, OR VACATE SENTENCE

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United States District Court
Northern District of California

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Act (“AEDPA”) provides that:
A second or successive motion must be certified . . . by a panel of the appropriate
court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). In interpreting this AEDPA provision, the U.S. Supreme Court has held that
district courts are “without jurisdiction to entertain” petitions where the petitioner neither seeks
nor receives prior authorization from the appropriate court of appeals to file the second or
successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). Petitioner has not sought, and
the Ninth Circuit has not issued, a certificate authorizing Petitioner to file a successive § 2255
motion. Accordingly, the Court DISMISSES the Petition. In addition, no certificate of
appealability shall issue, as Petitioner has not made a substantial showing of the denial of a
constitutional right, as required by 28 U.S.C. § 2253(c)(2). The Clerk shall close the file.
IT IS SO ORDERED.
Dated: June 20, 2016
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-CV-02690-LHK
ORDER DISMISSING § 2255 MOTION TO SET ASIDE, CORRECT, OR VACATE SENTENCE