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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I - . 1 APR 0 8 2019 2 sour~Jk8r'.i ~,s f~STRICT COURT 3 BY ICT OF CALIFORNIA DEPUTY 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 JORGE NUNEZ-DUENAS, Movant, 12 13 v. 14 UNITED STATES OF AMERICA, 15 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 16 17 Movant Jorge Nunez-Duenas filed a Motion to Vacate, Set Aside, or Correct a 18 Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States opposes the 19 motion. For the reasons set forth below, the Court denies the motion. 20 21 BACKGROUND In 2004, Nunez-Duenas was charged with the crime of illegal entry into the United 22 States. He pleaded guilty and was sentenced. The sentence was 48 months in prison in 23 January 2005. As part of his plea agreement and during the sentencing, Nunez-Duenas 24 waived his right to appeal or collaterally attack his sentence. In June 2016, he filed the 25 instant motion for collateral relief under§ 2255. 26 27 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 28 16-cv-1589-BEN 04-cr-2303-BEN 1 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 2 law; or (4) is otherwise subject to collateral attack. Title 28 U.S.C. § 2255. 3 DISCUSSION 4 The motion fails on several grounds. First, Movant validly waived his right to 5 collaterally attack his sentence. The record discloses no issues as to the voluntariness of 6 the plea and waiver. Second, under § 2255(f), the motion is untimely as it was filed more 7 than twelve months after his conviction became final. Here, the motion is untimely and 8 is barred by the statute of limitations. Third, contrary to his contentions, Movant's 9 sentence was not unconstitutionally enhanced under Johnson v. United States, 135 S. Ct. 10 2551 (2015). In Johnson, the Supreme Court considered language in the Armed Career 11 Criminal Act ("ACCA"). The Supreme Court examined the definition of"violent 12 felony" and held that a portion of that definition known as the "residual clause" is void 13 for vagueness. However, Movant was not sentenced under the residual clause of the 14 violent felony definition of the ACCA. Rather, he was sentenced pursuant to 18 U.S.C. 15 § 3553 as guided by the U.S. Sentencing Guidelines§ 2Ll.2(b). Reading the motion 16 liberally, when it was still an open question, Movant challenged the U.S. Sentencing 17 Guidelines as unconstitutionally vague based on the same reasoning as Johnson. 18 However, since the motion was filed, the Supreme Court has rejected the argument in 19 Beckles v. United States, 137 S. Ct. 886 (2017), holding that the federal Sentencing 20 Guidelines are not subject to vagueness challenges under the Due Process Clause. 21 Therefore, the motion is denied because: (1) Movant validly waived his right to 22 collateral attack; (2) the motion is barred by the statute of limitations; and (3) the motion 23 is without merit. 24 CONCLUSION 25 The Motion to Vacate, Set Aside or Correct Sentence is DENIED. 26 A court may issue a certificate of appealability where the movant has made a 27 "substantial showing of the denial ofa constitutional right," and reasonable jurists could 28 debate whether the motion should have been resolved differently, or that the issues 2 16-cv-1589-BEN 04-cr-2303-BEN 1 presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 2 322, 335 (2003). This Court finds that Movant has not made the necessary showing. A 3 certificate of appealability is therefore DENIED. 4 5 6 Dated: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-cv-1589-BEN 04-cr-2303-BEN

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