Mejia v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Roger T. Benitez on 6/20/2012.(All non-registered users served via U.S. Mail Service)(knb)

2

i).n t-}

LJ~l.

3
-.:;",'J:

4

-

,~
:.
­
...; • .Ji f ,

5

6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

HERBER DANILO MEJIA,

CASE NOS. 12-CV-1496 BEN
ll-CR-4509 BEN-l

12

Petitioner,

ORDER DENYING
28 U.S.c. § 2255 MOTION

vs.
13
UNITED STATES OF AMERICA,
14
Res ondent.
15
16

Petitioner Herber Danilo Mejia moves pursuant to 28 U.S.C. § 2255 for a reduction in his

17

sentence based on his alien status and challenges Bureau ofPrisons ' policies which preclude him from

18

participating in certain pre-release programs. Both because he waived the right to challenge his

19

sentence and because his Equal Protection argument lacks merit, the Court DENIES the motion.

20

DISCUSSION

21

I.

22

The Ninth Circuit recognizes strong public policy considerations justifying the enforcement

23

of a defendant's waiver of his right to appeal or collaterally attack a judgment. United States v.

24

Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Waivers play an important role in the plea

25

bargaining process and help ensure finality. Id. at 322. Generally, courts enforce a defendant's waiver

26

ofhis right to appeal, as long as the waiver was "knowingly and voluntarily made" and "encompasses

27

the defendant's right to appeal on the grounds claimed on appeal." United States v. Nunez, 223 F.3d

28

956,958 (9th Cir. 2000) (quoting United States v. Martinez, 143 F.3d 1266,1270-71 (9th Cir. 1998».

WAIVER

- 1-

12cv1496/ llcr4509

1

Petitioner waived his right to collaterally attack his sentence in his plea agreement. Plea

2

Agreement (Docket No. 17) ~ XI. The plea agreement states, "[t]he defendant ... waives, to the full

3

extent ofthe law, any right to appeal or to collaterally attack his sentence." Id Petitioner's knowing

4

and voluntary waiver of his right to collaterally attack his sentence requires denial of his § 2255

5

motion.

6

II.

7

Petitioner filed the present motion under 28 U.S. C. § 2255, but his Equal Protection challenge

8

to the constitutionality of certain Bureau of Prisons' policies is better construed as a challenge to the

9

manner in which his sentence is being executed under 28 U.S.C. § 2241. See Hernandez v. Campbell,

10

204 F.3d 861, 864 (9th Cir. 2000) (per curiam) (instructing that petitions challenging the "manner,

11

location or conditions of a sentence's execution must be brought pursuant to § 2241 "); see also

12

Montano-Figuerov. Crabtree, 162 F.3d548, 549 (9thCir. 1998) (illustrating that challenges to Bureau

13

of Prisons' policies are challenges to the execution of an inmate's sentence). Construing his motion

14

liberally, the Court considers Petitioner's Equal Protection claim under 28 U.S.C. § 2241. See Zichko

15

v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (noting a court's "duty to construe pro se pleadings

16

liberally").

EQUAL PROTECTION

17

Petitioner claims that Bureau ofPrisons' policies that prevent him from participating in certain

18

programs due to his alien status violate his right to Equal Protection. However, Bureau of Prisons

19

policies preventing deportable aliens from participating in certain programs survive constitutional

20

challenge. Cf McLean v. Crabtree, 173 F .3d 1176, 1186 (9th Cir. 1999) (finding BOP exclusion of

21

prisoners with detainers, including INS detainers, from community-based program based on

22

petitioners' alien status did not violate Equal Protection).

23

Additionally, a number of district courts have also found that policies preventing alien

24

prisoners from participating in certain pre-release programs are also justified because the purpose of

25

the program - helping prisoners reenter the community after serving their sentence - is not advanced

26

in the case of prisoners who will be deported upon release. See Lizarraga-Lopez v. United States, 89

27

F. Supp. 2d 1166, 1169-70 (S.D. Cal. 2000) (upholding deportable alien's ineligibility for community

28

confinement); United States v. Rodas-Jacome, No. 06-CV -1481,2007 WL 1231630, at *4 (S.D. Cal.

- 2-

12cv1496/11cr4509

1 Apr. 24, 2007) (upholding restrictions for alien prisoners to obtain "good time" credits in rehabilitation
2

programs). Because deportable alien prisoners pose a greater flight risk and the public policy

3 justifications for pre-release programs are inapplicable, the challenged policies survive constitutional
4
5

scrutiny and Petitioner's Equal Protection claim fails. The Court also denies relief under § 2241.
The Court DENIES a certificate of appealability because the issues are not debatable among

6 jurists of reason and there are no questions adequate to deserve encouragement.

7

CONCLUSION

8

Petitioner's motion is DENIED. The Clerk shall close case number 12-CV-1496 BEN.

9

IT IS SO ORDERED.

10
11

DATED:

Jun~2012

12
13
14
15
16
17
18

19
20
21
22
23
24
25
26
27
28

-3-

12cv1496/11cr4509