Martinez-Tomas v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 3/17/17.(All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 15CR0108-LAB/
16CV0526-LAB
Plaintiff,

vs.

ORDER DENYING MOTION UNDER
28 U.S.C. § 2255 [Doc. 22]

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PEDRO MARTINEZ-TOMAS,
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Defendant.
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Pedro Martinez-Tomas (“Martinez”) has filed a motion to vacate his sentence under

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28 U.S.C. § 2255. On November 1, 2016, the Court appointed Federal Defenders of

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San Diego to represent Mr. Martinez, and offered Federal Defenders an opportunity to file

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a supplemental brief in support of Mr. Martinez’s claims by November 15, 2016. Federal

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Defenders did not file a supplemental brief. Also on November 1, the Court ordered the

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Government to respond to Mr. Martinez’s motion. On November 17, 2016, Assistant U.S.

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Attorney Susan Park filed a response opposing Martinez’s request for relief.

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Ms. Park’s opposition brief points out that as part of his plea agreement Martinez

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waived the right to appeal or to collaterally attack his conviction, provided he received no

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more than 27 months in custody. He got the benefit of his bargain when the Court

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sentenced him to 27 months. Martinez’s plea agreement and the transcript of his change

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of plea establish that his waiver of the right to appeal and to collaterally attack his conviction
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15cr0108/16cv0526

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was knowing, voluntary, and intelligent. So the Court finds that the waiver is enforceable, and

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forecloses the relief that Martinez seeks.

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Even were the Court to consider Martinez’s claim on the merits, his motion would be

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denied. Martinez’s argument is that his sentence was somehow undermined by the holding

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in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), but the argument is

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unsupported by any basis in that decision. In Johnson, the Supreme Court invalidated the

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residual clause of the Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)) on the

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ground that the clause was vague. 135 S.Ct. at 2557-58. Martinez was not sentenced under

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the ACCA, nor under any other residual clause. He was sentenced under a specific provision

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of the United States Sentencing Guidelines (“Guidelines”) that provides for higher sentence

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if an offender was previously convicted of alien smuggling – as Martinez was. Unlike the

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defendant in Johnson, Martinez pled guilty to an offense that is explicitly defined and

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referenced under the Guidelines; his argument about vagueness misses the mark.

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Martinez’s waiver of the right to collaterally attack his sentence is enforceable against

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him, and he’s got no legitimate beef in any event. His motion to vacate his sentence is

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DENIED.

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IT IS SO ORDERED.

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DATED: March 17, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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15cr0108/16cv0526