Nunez-Duenas v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Roger T. Benitez on 4/8/2019.(All non-registered users served via U.S. Mail Service)(anh)

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APR 0 8 2019

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sour~Jk8r'.i ~,s f~STRICT COURT

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BY

ICT OF CALIFORNIA

DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JORGE NUNEZ-DUENAS,
Movant,

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v.

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UNITED STATES OF AMERICA,

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Respondent.

Case No.: 16-cv-1589-BEN
04-cr-2303-BEN

ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT A SENTENCE UNDER
28 u.s.c. § 2255

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Movant Jorge Nunez-Duenas filed a Motion to Vacate, Set Aside, or Correct a

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Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States opposes the

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motion. For the reasons set forth below, the Court denies the motion.

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BACKGROUND
In 2004, Nunez-Duenas was charged with the crime of illegal entry into the United

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States. He pleaded guilty and was sentenced. The sentence was 48 months in prison in

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January 2005. As part of his plea agreement and during the sentencing, Nunez-Duenas

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waived his right to appeal or collaterally attack his sentence. In June 2016, he filed the

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instant motion for collateral relief under§ 2255.

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Under § 2255, a movant is entitled to relief if the sentence: (1) was imposed in
violation of the Constitution or the laws of the United States; (2) was given by a court

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16-cv-1589-BEN
04-cr-2303-BEN

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without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by

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law; or (4) is otherwise subject to collateral attack. Title 28 U.S.C. § 2255.

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DISCUSSION

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The motion fails on several grounds. First, Movant validly waived his right to

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collaterally attack his sentence. The record discloses no issues as to the voluntariness of

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the plea and waiver. Second, under § 2255(f), the motion is untimely as it was filed more

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than twelve months after his conviction became final. Here, the motion is untimely and

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is barred by the statute of limitations. Third, contrary to his contentions, Movant's

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sentence was not unconstitutionally enhanced under Johnson v. United States, 135 S. Ct.

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2551 (2015). In Johnson, the Supreme Court considered language in the Armed Career

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Criminal Act ("ACCA"). The Supreme Court examined the definition of"violent

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felony" and held that a portion of that definition known as the "residual clause" is void

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for vagueness. However, Movant was not sentenced under the residual clause of the

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violent felony definition of the ACCA. Rather, he was sentenced pursuant to 18 U.S.C.

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§ 3553 as guided by the U.S. Sentencing Guidelines§ 2Ll.2(b). Reading the motion

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liberally, when it was still an open question, Movant challenged the U.S. Sentencing

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Guidelines as unconstitutionally vague based on the same reasoning as Johnson.

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However, since the motion was filed, the Supreme Court has rejected the argument in

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Beckles v. United States, 137 S. Ct. 886 (2017), holding that the federal Sentencing

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Guidelines are not subject to vagueness challenges under the Due Process Clause.

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Therefore, the motion is denied because: (1) Movant validly waived his right to

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collateral attack; (2) the motion is barred by the statute of limitations; and (3) the motion

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is without merit.

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CONCLUSION

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The Motion to Vacate, Set Aside or Correct Sentence is DENIED.

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A court may issue a certificate of appealability where the movant has made a

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"substantial showing of the denial ofa constitutional right," and reasonable jurists could

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debate whether the motion should have been resolved differently, or that the issues
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04-cr-2303-BEN

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presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S.

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322, 335 (2003). This Court finds that Movant has not made the necessary showing. A

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certificate of appealability is therefore DENIED.

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Dated:

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16-cv-1589-BEN
04-cr-2303-BEN