Lujan-Carpio v. USA

Filing 3

ORDER Dismissing Defendant's Motions Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence and Denying Certificate of Appealability. Petition to Vacate under 28 USC 2255. Signed by Judge Janis L. Sammartino on 9/21/2017.(All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 Case Nos.: 12CR4302-JLS 14CV2171-JLS UNITED STATES OF AMERICA, Plaintiff, 10 11 v. 12 FRANCISCO LUJAN-CARPIO, ORDER DISMISSING DEFENDANT’S MOTIONS UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE and DENYING CERTIFICATE OF APPEALABILITY Defendant. 13 14 15 16 On September 11, 2014, Defendant, proceeding pro se, filed a Motion for Time 17 Reduction by an Inmate in Federal Custody under 28 U.S.C. § 2255 (ECF No. 28). On 18 April 25, 2016, Defendant filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or 19 Correct Sentence by Person in Federal Custody (ECF No. 30). Plaintiff has not filed a 20 response to either motion. 21 Defendant’s first motion was filed more than one year after his conviction became 22 final1 and is therefore untimely pursuant to 28 U.S.C. § 2255(f)(1). Defendant has not 23 alleged or demonstrated that any of the alternative limitation periods set forth in Section 24 2255(f) are applicable with respect to this motion. 25                                                 26 27 28 1 Defendant was sentenced on February 22, 2013 and he filed no notice of appeal. Thus, his conviction became final 14 days later. See United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (recognizing that statute of limitations for § 2255 motion began to run upon the expiration of the time during which the defendant could have sought review by direct appeal). 1 12CR4302-JLS 14CV2171-JLS 1 Defendant contends that his second motion, filed on April 25, 2016, is timely 2 pursuant to 28 U.S.C. § 2255(f)(3)2 in light of Johnson v. United States, 135 S.Ct. 2551 3 (2015). In Johnson, the Supreme Court struck down the residual clause of the Armed 4 Career Criminal Act (AACCA@) as unconstitutionally vague. 5 Defendant contends that Johnson announced a new rule rendering his sentence 6 enhancement for a crime of violence pursuant to United States Sentencing Guideline 7 Section 2L1.2(b)(1)(A)(ii) void or unconstitutional. This argument, however, is 8 foreclosed by the Supreme Court’s decision in Beckles v. United States, 137 S.Ct. 886 9 (2017). In Beckles, the Court held that the Sentencing Guidelines are not subject to a 10 void for vagueness challenge. 137 S.Ct. at 896. Therefore, Johnson is not applicable in 11 this case and thus cannot serve to extend the limitations period under 28 U.S.C. § 12 2255(f)(3). 13 Accordingly, the Court finds both motions filed by Defendant to be time-barred 14 under 28 U.S.C. §2255(f). Defendant’s Motion for Time Reduction by an Inmate in 15 Federal Custody under 28 U.S.C. § 2255 (ECF No. 28) and Motion under 28 U.S.C. § 16 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody (ECF No. 17 30) are Hereby Dismissed. Additionally, the Court Denies Defendant a certificate of 18 appealability, as Defendant has not made a substantial showing that he has been denied a 19 constitutional right. 20 IT IS SO ORDERED. 21 Dated: September 21, 2017 22 23 24 25 26                                                 27 2 28 28 U.S.C. § 2255(f)(3) proscribes a one year period of limitation from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 2 12CR4302-JLS 14CV2171-JLS

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