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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 13cr3309-MMA Related Case No.: 16cv1651-MMA UNITED STATES OF AMERICA, Plaintiff, 12 13 v. 14 DANIEL VAZCONES, 15 ORDER DENYING DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255 Defendant. [Doc. No. 56] 16 17 18 On September 18, 2014, Defendant Daniel Vazcones was charged in a two-count 19 Superseding Information with distribution of methamphetamine, in violation of Title 21, 20 United States Code, section 841(a)(1), and possession of a firearm in furtherance of a 21 drug trafficking crime, in violation of Title 18, section 924(c)(1). See Doc. No. 34. 22 Defendant pleaded guilty to both counts. See Doc. No. 38. On March 23, 2015, the 23 Court sentenced Defendant as a career offender to a term of 180 months in custody. See 24 Doc. No. 53. Defendant now collaterally challenges his conviction and sentence pursuant 25 to 28 U.S.C. § 2255. See Doc. No. 56. Defendant raises multiple grounds for relief, 26 primarily challenging his classification as a career offender under the United States 27 Sentencing Guidelines in light of Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551 28 (2015), and the passage of California Proposition 47, the Safe Neighborhoods and 1 13cr3309-MMA 1 Schools Act, Cal. Penal Code § 1170.18. Defendant also claims the government 2 impermissibly amended the charging document in this case to add the weapons charge, 3 and that he received ineffective assistance when his counsel advised him to plead guilty 4 to the charges in the Superseding Information.1 The government filed a response to 5 Defendant’s motion, to which Defendant replied. See Doc. Nos. 67, 75. For the reasons 6 set forth below, the Court DENIES Defendant’s 2255 motion. DISCUSSION2 7 8 1. 9 Legal Standard If a defendant in a federal criminal case collaterally challenges his conviction or 10 sentence, he must do so pursuant to 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 11 1160, 1162 (9th Cir. 1988). Under section 2255, a court may grant relief to a defendant 12 who challenges the imposition or length of his incarceration on the ground that: (1) the 13 sentence was imposed in violation of the Constitution or laws of the United States; (2) the 14 court was without jurisdiction to impose such sentence; (3) the sentence was in excess of 15 the maximum authorized by law; or (4) the sentence is otherwise subject to collateral 16 attack. 28 U.S.C. § 2255(a). A defendant must allege specific facts that, if true, entitle 17 him to relief. See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004); United 18 States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citation omitted). 19 The Court is not required to hold an evidentiary hearing when the issues can be 20 conclusively decided on the basis of the existing record. 28 U.S.C. § 2255; see United 21 States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing United States v. Hearst, 22 638 F.2d 1190, 1194 (9th Cir.1980)). The Court declines to hold an evidentiary hearing 23 24 25 26 27                                                 1 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. 2 28 The Court adopts the factual background as set forth by the government in its response brief. See Doc. No. 67 at 3-6. 2 13cr3309-MMA 1 in this case because the motion, on its face, conclusively demonstrates that Defendant is 2 not entitled to relief. 3 2. Waiver 4 Pursuant to the terms of his written plea agreement, as confirmed on the record 5 during the change of plea hearing and again during the sentencing hearing, Defendant 6 waived his rights to directly appeal or collaterally attack his conviction and sentence. See 7 Doc. No. 38 at 11-12. Therefore, as an initial matter, the government argues that this 8 waiver precludes Defendant from seeking collateral relief. However, Defendant retained 9 his right to pursue “a post-conviction collateral attack based on a claim of ineffective 10 assistance of counsel.” Id. at 11. Moreover, a waiver cannot bar a claim that relates to 11 the validity of the waiver itself. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 12 1993). 13 Here, Defendant brings multiple claims, including a challenge to the validity of his 14 plea agreement (and the waivers contained therein) based on ineffective assistance of 15 counsel. In the Ninth Circuit, such a claim is not waived. See United States v. Pruitt, 32 16 F.3d 431, 433 (9th Cir. 1994) (expressing doubt that a plea agreement could waive a 17 claim that counsel erroneously induced a defendant to plead guilty or accept a particular 18 plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver 19 forecloses a claim of ineffective assistance or involuntariness of the waiver). The Court 20 therefore turns to the government’s assertion that Defendant’s claims are procedurally 21 barred based on his failure to file a direct appeal. 22 3. Procedural Bar 23 Defendant did not challenge his sentence on direct appeal. As a result, the 24 government argues that Defendant’s claims of sentencing error are procedurally barred. 25 Generally, on collateral review, an individual may not assert claims of constitutional error 26 that were not previously raised before the district court or on direct review. United States 27 v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1997). To obtain review of issues at this 28 juncture that could have been raised on direct appeal, Defendant must show cause for his 3 13cr3309-MMA 1 procedural default and actual prejudice resulting from the error. Bousley v. United States, 2 523 U.S. 614, 622 (1998) (“Where a defendant has procedurally defaulted a claim by 3 failing to raise it on direct review, the claim may be raised in habeas only if the defendant 4 can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually 5 innocent.’”) (internal citations omitted); United States v. Frady, 456 U.S. 152, 167-68 6 (1982); United State v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985). 7 In his reply brief, Defendant argues that he is “actually innocent” of the career 8 offender enhancement to his sentence. The Supreme Court has opined that “in an 9 extraordinary case, where a constitutional violation has probably resulted in the 10 conviction of one who is actually innocent, a federal habeas court may grant the writ even 11 in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 12 U.S. 478, 496 (1986). Ordinarily, a defendant can only be “actually innocent” of a 13 noncapital sentencing enhancement if he is actually innocent of an underlying offenses 14 used to enhance the sentence. Marrero v. Ives, 682 F.3d 1190, 1193-92 (9th Cir. 2012). 15 Defendant does not claim to be innocent of his prior offenses. 16 In the alternative, Defendant contends that he could not have brought his Johnson 17 claim previously, and he suffered prejudice as a result. Even if the Court accepts this 18 assertion, it would not excuse Defendant’s procedural default of his other claims. In any 19 event, as discussed below, Defendant’s claims lack merit. 20 4. Analysis 21 a) 22 Defendant argues that his prior conviction for domestic battery under California Johnson Claim 23 Penal Code § 273.5(a) is no longer a “crime of violence” under Johnson for career 24 offender purposes, and therefore his sentence was improperly enhanced under Section 25 4B1.1 of the Sentencing Guidelines. 26 In Johnson v. United States, the Supreme Court held the residual clause in the 27 definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. § 28 924(e)(2)(B) (“ACCA”), to be unconstitutionally vague and a violation of the Due 4 13cr3309-MMA 1 Process Clause. 135 S. Ct. at 2557. Defendant was not sentenced under the ACCA’s 2 residual clause; he was sentenced based on the career offender enhancement provision of 3 the Sentencing Guidelines. Nonetheless, Defendant argues that Johnson’s holding is 4 applicable, because the ACCA’s residual clause is identical in language to Section 5 4B1.2’s residual clause. However, on March 6, 2017, the Supreme Court ruled that 6 Johnson’s holding does not extend to the Sentencing Guidelines, in so far as “the 7 advisory Guidelines are not subject to vagueness challenges under the Due Process 8 Clause.” Beckles v. United States, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017). Under 9 Beckles, “it plainly appears from the face of the motion” that Defendant “is not entitled to 10 relief” on this basis. See Rule 4(b) of the Rules Governing Section 2255 Proceedings for 11 the United States District Courts. As such, Defendant’s Johnson claim fails. 12 b) 13 Defendant argues that the Court improperly applied the career offender California Proposition 47 14 enhancement because Defendant’s prior conviction for possession of a controlled 15 substance for sale, in violation of California Health and Safety Code section 11378(a), no 16 longer qualifies as a felony under California Proposition 47. This claim fails for several 17 reasons. First, while Proposition 47 amended Health and Safety Code section 11377, 18 possession of a controlled substance, it did not amend Section 11378, possession for sale, 19 the statute under which Defendant was convicted. See Cal. Pen. Code § 1170.18. 20 Second, even if Proposition 47 applied, Defendant’s claim fails under United States v. 21 Diaz, 838 F.3d 968 (9th Cir. 2016), in which the Ninth Circuit held that Proposition 47 22 does not retroactively make a defendant’s felony conviction a misdemeanor for purposes 23 of federal law. 24 c) 25 Defendant argues that the government impermissibly amended the Indictment in Additional Charge 26 this case to add a felon in possession of a firearm charge under 18 U.S.C. § 924(c). 27 However, Defendant was charged in a Superseding Information with two counts, 28 including the felon in possession charge, after waiving his right to prosecution by 5 13cr3309-MMA 1 indictment. See Doc. Nos. 34, 35. Defendant does not contest the validity of this waiver. 2 Defendant’s claim of charging error fails. 3 d) 4 Finally, Defendant claims that he received ineffective assistance when counsel Ineffective Assistance of Counsel 5 advised Defendant to plead guilty without informing him of the additional felon in 6 possession charge. The record clearly establishes that this claim is without merit. 7 Defendant reviewed, initialed, and signed a written plea agreement that clearly set forth 8 the nature of his plea, to both counts of the Superseding Indictment, as well as the factual 9 basis underlying both counts. See Doc. No. 38. Defendant further attested that “[b]y 10 signing this agreement, defendant certifies that defendant has read it (or that it has been 11 read to defendant in defendant’s native language). Defendant has discussed the terms of 12 this agreement with defense counsel and fully understands its meaning and effect.” Id. at 13 14. The magistrate judge confirmed the nature of the plea, its factual basis, and 14 Defendant’s knowledge and understanding of the plea, during the plea colloquy that took 15 place during the change of plea hearing. See Doc. No. 39. Defendant does not contest 16 these facts and does not provide any other basis for his claim of ineffective assistance of 17 counsel. As such, his claim fails. 18 19 CERTIFICATE OF APPEALABILITY Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States 20 District Courts provides that “[t]he district court must issue or deny a certificate of 21 appealability when it enters a final order adverse to the applicant.” A defendant must 22 obtain a certificate of appealability before pursuing any appeal from a final order in a 23 Section 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a Section 24 2255 motion is based on the merits of the claims in the motion, a district court should 25 issue a certificate of appealability only when the appeal presents a “substantial showing 26 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The defendant must 27 show that reasonable jurists could debate whether the issues should have been resolved 28 differently or are “adequate to deserve encouragement to proceed further.” Slack v. 6 13cr3309-MMA 1 McDaniel, 529 U.S. 473, 483 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 2 (1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2); see also Mendez v. 3 Knowles, 556 F.3d 757, 771 (9th Cir. 2009). 4 The Court has carefully reviewed Defendant’s 2255 motion and considered the 5 record as a whole. Because Defendant has not made a substantial showing of the denial 6 of a constitutional right, and because the Court finds that reasonable jurists would not 7 debate the denial of Defendant’s motion, the Court declines to issue a certificate of 8 appealability. 9 10 CONCLUSION Based on the foregoing, the Court DENIES Defendant’s 2255 motion. The Court 11 DECLINES to issue a certificate of appealability. The Clerk of Court is instructed to 12 enter judgment in accordance herewith and close the related civil case. 13 14 15 IT IS SO ORDERED. DATE: April 7, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 7 13cr3309-MMA

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