Parra v. USA

Filing 2

ORDER Dismissing Petitioner's motion to vacate, set aside or correct his sentence under 28 USC 2255. Signed by Judge John A. Houston on 9/13/2021.(jpp)

Case 3:16-cv-02879-JAH Document 2 Filed 09/13/21 PageID.25 Page 1 of 4

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALFREDO PARRA,

Civil No.: 16cv02879 JAH
Criminal No.: 14cr03160 JAH

Petitioner,

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v.

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UNITED STATES OF AMERICA,

ORDER DISMISSING
PETITIONER’S MOTION TO
VACATE, SET ASIDE OR
CORRECT HIS SENTENCE UNDER
28 U.S.C. § 2255
[Doc. No. 24]

Respondent.

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Pending before the Court is Alfredo Parra’s pro se motion to vacate and correct his

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sentence under 28 U.S.C. section 2255. A section 2255 motion may be brought to vacate,

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set aside or correct a federal sentence on the following grounds: (1) the sentence “was

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imposed in violation of the Constitution or laws of the United States,” (2) “the court was

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without jurisdiction to impose such sentence,” (3) “the sentence was in excess of the

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maximum authorized by law,” or (4) the sentence is “otherwise subject to collateral attack.”

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28 U.S.C. § 2255(a).

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enhancement he received under USSC section 2L.1.2. He maintains he never received the

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documents containing information on the predicate offense used to enhance his sentence

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in violation of Mathis v. United States. Additionally, he argues defense counsel never

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advised him of his right to appeal. In opposition, Respondent argues the petition is time-

Petitioner argues the record does not support the sentencing

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16cv02879 JAH

Criminal No.: 14cr03160 JAH

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barred, Petitioner waived his right to collaterally attack his sentence and the level 16

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increase was appropriate.

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November 13, 2014, Petitioner pled guilty to one count of a previously excluded,

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deported or removed alien found in the United States in violation of Title 8 U.S.C. section

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1326(a) and (b). See Doc. No. 13. As part of his plea, Petitioner waived his right to appeal

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or collaterally attack his conviction. Plea Agreement at 10 (Doc. No. 13). On February 9,

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2015, this Court sentenced Petitioner to 46 months which was the low end of the guideline

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range of 46 to 57 months. Presentence Report at 14 (Doc. No. 18). Petitioner’s guideline

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calculation included a 16-level increase of his offense level pursuant to USSG section

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2L1.2(b)(1)(A)(vii) based upon a prior felony drug trafficking offense, attempt to commit

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possession of marijuana for sale. Id. at 5; Reporter’s Transcript at 6:3-4. He admitted to

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the 2008 conviction for attempt to commit possession of marijuana for sale in the plea

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agreement and affirmed he had an opportunity to discuss all the circumstances of his case

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with counsel and he had a clear understanding of the charges and his plea. Plea Agreement

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at 3, 5.

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A motion brought under section 2255 must be filed within one year of the date the

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conviction becomes final. 28 U.S.C. §2255(f). Because Petitioner did not file an appeal,

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his conviction became final 14 days after February 9, 2015, the day he was sentenced. See

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United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). As such, he had until

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February 24, 2016, to file his motion. His motion filed on November 21, 2016, is untimely.

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In the motion, Petitioner asserts he is entitled to tolling because the Court and parties

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did not have the benefit of Mathis v. United States and defense counsel did not advise him

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regarding his right to appeal. The limitation period may be equitably tolled if the petitioner

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demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some

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extraordinary circumstance stood in his way and prevented timely filing.” United States v.

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Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 648

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(2010). Petitioner provides no citation for the Mathis case and no argument as to how the

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case demonstrates he was prevented from filing his motion timely. In addition, the
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Criminal No.: 14cr03160 JAH

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Honorable Barbara L. Major, United States Magistrate Judge, questioned Petitioner about

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his understanding of the plea agreement, his ability to discuss the sentencing guidelines

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with his counsel and his understanding of the waiver of appeal and collateral attack at the

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hearing where he changed his plea to guilty. Petitioner fails to meet his burden of showing

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extraordinary circumstances prevented him from timely filing his motion. Accordingly,

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the motion is DISMISSED as untimely.

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CERTIFICATE OF APPEALABILITY

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Pursuant to Rule 11 of the Rules following 28 U.S.C. section 2254, a district court

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“must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant” in Section 2255 cases such as this. A habeas petitioner may not appeal the denial

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of a Section 2255 habeas petition unless he obtains a certificate of appealability from a

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district or circuit judge. 28 U.S.C. § 2253(c)(1)(B); see also United States v. Asrar, 116

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F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue

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certificates of appealability under AEDPA). A certificate of appealability is authorized “if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28

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U.S.C. § 2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the

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issues are debatable among jurists of reason, (2) that a court could resolve the issues in a

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different manner, or (3) that the questions are adequate to deserve encouragement to

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proceed further. Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000) (citing

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Slack v. McDaniel, 529 U.S. 473 (2000)).

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Based on this Court’s review of the record, this Court finds no issues are debatable

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among jurists of reason and no issues could be resolved in a different manner. This Court

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further finds that no questions are adequate to deserve encouragement to proceed further.

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Therefore, Petitioner is not entitled to a certificate of appealability.

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CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED:

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DISMISSED;

Petitioner’s motion to vacate, set aside or correct his sentence is

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Criminal No.: 14cr03160 JAH

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2.

Petitioner’s motion to appoint counsel is DENIED as moot;

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Petitioner’s motion for default judgment is DENIED as moot;

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2.

Petitioner is DENIED a certificate of appealability.

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DATED: September 13, 2021
_________________________________
JOHN A. HOUSTON
United States District Judge

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16cv02879 JAH

Criminal No.: 14cr03160 JAH