Vazcones v. United States of America

Filing 2

ORDER Denying Defendant's Motion to Vacate Under 28 U.S.C. § 2255 as to Daniel Vazcones. Signed by Judge Michael M. Anello on 4/7/2017.(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 13cr3309-MMA
Related Case No.: 16cv1651-MMA

UNITED STATES OF AMERICA,
Plaintiff,

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v.

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DANIEL VAZCONES,

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ORDER DENYING DEFENDANT’S
MOTION TO VACATE UNDER 28
U.S.C. § 2255
Defendant.
[Doc. No. 56]

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On September 18, 2014, Defendant Daniel Vazcones was charged in a two-count

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Superseding Information with distribution of methamphetamine, in violation of Title 21,

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United States Code, section 841(a)(1), and possession of a firearm in furtherance of a

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drug trafficking crime, in violation of Title 18, section 924(c)(1). See Doc. No. 34.

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Defendant pleaded guilty to both counts. See Doc. No. 38. On March 23, 2015, the

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Court sentenced Defendant as a career offender to a term of 180 months in custody. See

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Doc. No. 53. Defendant now collaterally challenges his conviction and sentence pursuant

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to 28 U.S.C. § 2255. See Doc. No. 56. Defendant raises multiple grounds for relief,

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primarily challenging his classification as a career offender under the United States

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Sentencing Guidelines in light of Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551

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(2015), and the passage of California Proposition 47, the Safe Neighborhoods and
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Schools Act, Cal. Penal Code § 1170.18. Defendant also claims the government

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impermissibly amended the charging document in this case to add the weapons charge,

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and that he received ineffective assistance when his counsel advised him to plead guilty

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to the charges in the Superseding Information.1 The government filed a response to

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Defendant’s motion, to which Defendant replied. See Doc. Nos. 67, 75. For the reasons

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set forth below, the Court DENIES Defendant’s 2255 motion.
DISCUSSION2

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1.

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Legal Standard
If a defendant in a federal criminal case collaterally challenges his conviction or

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sentence, he must do so pursuant to 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d

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1160, 1162 (9th Cir. 1988). Under section 2255, a court may grant relief to a defendant

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who challenges the imposition or length of his incarceration on the ground that: (1) the

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sentence was imposed in violation of the Constitution or laws of the United States; (2) the

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court was without jurisdiction to impose such sentence; (3) the sentence was in excess of

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the maximum authorized by law; or (4) the sentence is otherwise subject to collateral

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attack. 28 U.S.C. § 2255(a). A defendant must allege specific facts that, if true, entitle

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him to relief. See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004); United

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States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citation omitted).

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The Court is not required to hold an evidentiary hearing when the issues can be

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conclusively decided on the basis of the existing record. 28 U.S.C. § 2255; see United

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States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing United States v. Hearst,

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638 F.2d 1190, 1194 (9th Cir.1980)). The Court declines to hold an evidentiary hearing

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Defendant has also filed a document styled as a “request for reconsideration,” Doc. No. 59, which the
Court DENIES AS MOOT and construes properly as supplemental documentation in support of his
2255 motion.
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The Court adopts the factual background as set forth by the government in its response brief. See Doc.
No. 67 at 3-6.
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in this case because the motion, on its face, conclusively demonstrates that Defendant is

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not entitled to relief.

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2.

Waiver

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Pursuant to the terms of his written plea agreement, as confirmed on the record

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during the change of plea hearing and again during the sentencing hearing, Defendant

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waived his rights to directly appeal or collaterally attack his conviction and sentence. See

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Doc. No. 38 at 11-12. Therefore, as an initial matter, the government argues that this

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waiver precludes Defendant from seeking collateral relief. However, Defendant retained

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his right to pursue “a post-conviction collateral attack based on a claim of ineffective

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assistance of counsel.” Id. at 11. Moreover, a waiver cannot bar a claim that relates to

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the validity of the waiver itself. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.

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1993).

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Here, Defendant brings multiple claims, including a challenge to the validity of his

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plea agreement (and the waivers contained therein) based on ineffective assistance of

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counsel. In the Ninth Circuit, such a claim is not waived. See United States v. Pruitt, 32

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F.3d 431, 433 (9th Cir. 1994) (expressing doubt that a plea agreement could waive a

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claim that counsel erroneously induced a defendant to plead guilty or accept a particular

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plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver

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forecloses a claim of ineffective assistance or involuntariness of the waiver). The Court

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therefore turns to the government’s assertion that Defendant’s claims are procedurally

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barred based on his failure to file a direct appeal.

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3.

Procedural Bar

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Defendant did not challenge his sentence on direct appeal. As a result, the

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government argues that Defendant’s claims of sentencing error are procedurally barred.

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Generally, on collateral review, an individual may not assert claims of constitutional error

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that were not previously raised before the district court or on direct review. United States

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v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1997). To obtain review of issues at this

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juncture that could have been raised on direct appeal, Defendant must show cause for his
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procedural default and actual prejudice resulting from the error. Bousley v. United States,

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523 U.S. 614, 622 (1998) (“Where a defendant has procedurally defaulted a claim by

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failing to raise it on direct review, the claim may be raised in habeas only if the defendant

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can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually

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innocent.’”) (internal citations omitted); United States v. Frady, 456 U.S. 152, 167-68

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(1982); United State v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985).

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In his reply brief, Defendant argues that he is “actually innocent” of the career

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offender enhancement to his sentence. The Supreme Court has opined that “in an

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extraordinary case, where a constitutional violation has probably resulted in the

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conviction of one who is actually innocent, a federal habeas court may grant the writ even

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in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477

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U.S. 478, 496 (1986). Ordinarily, a defendant can only be “actually innocent” of a

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noncapital sentencing enhancement if he is actually innocent of an underlying offenses

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used to enhance the sentence. Marrero v. Ives, 682 F.3d 1190, 1193-92 (9th Cir. 2012).

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Defendant does not claim to be innocent of his prior offenses.

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In the alternative, Defendant contends that he could not have brought his Johnson

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claim previously, and he suffered prejudice as a result. Even if the Court accepts this

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assertion, it would not excuse Defendant’s procedural default of his other claims. In any

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event, as discussed below, Defendant’s claims lack merit.

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4.

Analysis

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a)

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Defendant argues that his prior conviction for domestic battery under California

Johnson Claim

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Penal Code § 273.5(a) is no longer a “crime of violence” under Johnson for career

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offender purposes, and therefore his sentence was improperly enhanced under Section

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4B1.1 of the Sentencing Guidelines.

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In Johnson v. United States, the Supreme Court held the residual clause in the

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definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. §

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924(e)(2)(B) (“ACCA”), to be unconstitutionally vague and a violation of the Due
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Process Clause. 135 S. Ct. at 2557. Defendant was not sentenced under the ACCA’s

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residual clause; he was sentenced based on the career offender enhancement provision of

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the Sentencing Guidelines. Nonetheless, Defendant argues that Johnson’s holding is

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applicable, because the ACCA’s residual clause is identical in language to Section

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4B1.2’s residual clause. However, on March 6, 2017, the Supreme Court ruled that

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Johnson’s holding does not extend to the Sentencing Guidelines, in so far as “the

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advisory Guidelines are not subject to vagueness challenges under the Due Process

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Clause.” Beckles v. United States, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017). Under

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Beckles, “it plainly appears from the face of the motion” that Defendant “is not entitled to

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relief” on this basis. See Rule 4(b) of the Rules Governing Section 2255 Proceedings for

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the United States District Courts. As such, Defendant’s Johnson claim fails.

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b)

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Defendant argues that the Court improperly applied the career offender

California Proposition 47

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enhancement because Defendant’s prior conviction for possession of a controlled

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substance for sale, in violation of California Health and Safety Code section 11378(a), no

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longer qualifies as a felony under California Proposition 47. This claim fails for several

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reasons. First, while Proposition 47 amended Health and Safety Code section 11377,

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possession of a controlled substance, it did not amend Section 11378, possession for sale,

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the statute under which Defendant was convicted. See Cal. Pen. Code § 1170.18.

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Second, even if Proposition 47 applied, Defendant’s claim fails under United States v.

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Diaz, 838 F.3d 968 (9th Cir. 2016), in which the Ninth Circuit held that Proposition 47

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does not retroactively make a defendant’s felony conviction a misdemeanor for purposes

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of federal law.

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c)

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Defendant argues that the government impermissibly amended the Indictment in

Additional Charge

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this case to add a felon in possession of a firearm charge under 18 U.S.C. § 924(c).

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However, Defendant was charged in a Superseding Information with two counts,

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including the felon in possession charge, after waiving his right to prosecution by
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indictment. See Doc. Nos. 34, 35. Defendant does not contest the validity of this waiver.

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Defendant’s claim of charging error fails.

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d)

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Finally, Defendant claims that he received ineffective assistance when counsel

Ineffective Assistance of Counsel

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advised Defendant to plead guilty without informing him of the additional felon in

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possession charge. The record clearly establishes that this claim is without merit.

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Defendant reviewed, initialed, and signed a written plea agreement that clearly set forth

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the nature of his plea, to both counts of the Superseding Indictment, as well as the factual

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basis underlying both counts. See Doc. No. 38. Defendant further attested that “[b]y

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signing this agreement, defendant certifies that defendant has read it (or that it has been

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read to defendant in defendant’s native language). Defendant has discussed the terms of

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this agreement with defense counsel and fully understands its meaning and effect.” Id. at

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14. The magistrate judge confirmed the nature of the plea, its factual basis, and

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Defendant’s knowledge and understanding of the plea, during the plea colloquy that took

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place during the change of plea hearing. See Doc. No. 39. Defendant does not contest

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these facts and does not provide any other basis for his claim of ineffective assistance of

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counsel. As such, his claim fails.

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CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States

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District Courts provides that “[t]he district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the applicant.” A defendant must

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obtain a certificate of appealability before pursuing any appeal from a final order in a

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Section 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a Section

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2255 motion is based on the merits of the claims in the motion, a district court should

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issue a certificate of appealability only when the appeal presents a “substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The defendant must

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show that reasonable jurists could debate whether the issues should have been resolved

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differently or are “adequate to deserve encouragement to proceed further.” Slack v.
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McDaniel, 529 U.S. 473, 483 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

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(1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2); see also Mendez v.

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Knowles, 556 F.3d 757, 771 (9th Cir. 2009).

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The Court has carefully reviewed Defendant’s 2255 motion and considered the

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record as a whole. Because Defendant has not made a substantial showing of the denial

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of a constitutional right, and because the Court finds that reasonable jurists would not

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debate the denial of Defendant’s motion, the Court declines to issue a certificate of

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appealability.

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CONCLUSION
Based on the foregoing, the Court DENIES Defendant’s 2255 motion. The Court

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DECLINES to issue a certificate of appealability. The Clerk of Court is instructed to

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enter judgment in accordance herewith and close the related civil case.

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IT IS SO ORDERED.
DATE: April 7, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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