Martinez-Perez v. USA
Filing
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ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Gonzalo P. Curiel on 9/5/17.(All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JUAN FRANCISCO MARTINEZPEREZ,
Petitioner,
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Civil No.: 3:17-cv-00508-GPC
Criminal No.: 3:14-cr-00106-GPC-1
ORDER DENYING PETITIONER’S
MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER
28 U.S.C. § 2255 AND MOTION FOR
REDUCTION OF SENTENCE
UNDER 18 U.S.C. § 3582(c)(2).
v.
UNITED STATES OF AMERICA,
Respondent.
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[Dkt. Nos. 47, 51]
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On November 21, 2014, this Court sentenced Petitioner Juan Francisco Martinez-
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Perez (“Petitioner”) to fifty-seven (57) months imprisonment and three (3) years
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supervised release based on his guilty plea of knowingly and intentionally attempting to
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enter the United States without the express consent of the Attorney General in violation
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of 8 U.S.C. § 1326. Dkt. No. 33; Dkt. No. 19 at 2. Petitioner now brings two motions to
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vacate, set aside, or correct his sentence under title 28 U.S.C. § 2255 (“§ 2255”) and title
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18 U.S.C. § 3582 (“§ 3582”) based on Amendment 802 to the United States Sentencing
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Guidelines (“U.S.S.G.”) § 2L1.2. Dkt. No. 47 at 1-2; Dkt. No. 51 at 1-2. Upon review of
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the moving papers, the applicable law, and for the following reasons, the Court DENIES
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both motions.
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BACKGROUND
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On February 18, 2014, Petitioner signed a plea agreement, pleading guilty to
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attempting to reenter the United States illegally after removal. Dkt. No. 19 at 2.1 The
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Presentencing Report recommended a sentence of sixty-three (63) months of
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imprisonment and three (3) years of supervised release. Dkt. No. 23 at 17. This Court
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subsequently sentenced Petitioner to fifty-seven (57) months imprisonment and three (3)
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years of supervised release. Dkt. No. 33.
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Petitioner previously filed a motion to vacate his sentence under § 2255 on May 7,
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2015. Dkt. No. 37. This Court denied that motion primarily on the grounds that
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Petitioner had waived his right to collaterally attack his sentence through his plea
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agreement. Dkt. No. 43 at 3-4.
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The instant motions followed. Dkt. No. 47; Dkt. No. 51. The Court construed the
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first motion, filed on March 14, 2017, as a motion to vacate, set aside, or correct sentence
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under 28 U.S.C. § 2255 and construed the second motion, filed on March 28, 2017, as a
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motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). Because the two motions
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were identical in content, the Court granted Respondent permission to file an omnibus
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response. Respondent, in turn, filed an opposition on April 25, 2017. Dkt. No. 56.
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Petitioner did not file a reply.
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DISCUSSION
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I.
Successive 28 U.S.C. § 2255 motions
“A petitioner is generally limited to one motion under § 2255, and may not bring a
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‘second or successive motion’ unless it meets the exacting standards of 28 U.S.C.
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§ 2255(h).” U.S. v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011) (quoting 28 U.S.C.
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§ 2255). Under § 2255(h), a successive motion must contain either “(1) newly
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discovered evidence that, if proven and viewed in light of the evidence as a whole, would
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Unless otherwise noted, docket entries refer to the criminal docket.
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be sufficient to establish by clear and convincing evidence that no reasonable factfinder
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would have found the movant guilty of the offense” or “(2) a new rule of constitutional
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law, made retroactive to cases on collateral review by the Supreme Court, that was
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previously unavailable.” 28 U.S.C. § 2255. Before filing a second § 2255 motion, a
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three-judge panel from the appropriate court of appeals must certify that the motion
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meets the requirements of § 2255(h) and then issue an order authorizing the district court
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to consider the application. 28 U.S.C. § 2244(3).
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Petitioner, here, did not obtain authorization from a court of appeals panel before
filing his successive § 2255 motion. See Washington, 653 F.3d at 1059; see also 28
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U.S.C. § 2255(h). Accordingly, and to the extent that the Court construed Petitioner’s
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request as a § 2255 motion, such a request for relief is denied as successive.
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II.
Applying Amendment 802 retroactively in § 3582 motion
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Petitioner can bring a claim to reduce his sentence based on a subsequent
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amendment pursuant to 18 U.S.C. § 3582, but only if the amendment can be applied to
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his sentence retroactively. “Absent an ex post facto problem, the district court must
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apply the version of the Guidelines in effect at the time of sentencing.” U.S. v. Cueto, 9
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F.3d 1438, 1440 (9th Cir. 1993). However, when sentencing ranges are reduced after a
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defendant’s sentencing, such a reduction can be applied to that defendant’s sentence
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retroactively “if such a reduction is consistent with applicable policy statements issued by
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the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
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“[W]hen an amendment is a clarification, rather than an alteration, of existing law,
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then it should be used in interpreting the provision in question retroactively.” U.S. v.
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Aquino, 242 F.3d 859, 865 (9th Cir. 2001). In deciding whether an amendment is a
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substantive alteration or a clarification, the Ninth Circuit looks to “(1) whether the
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amendment is included on the list of retroactive amendments found in U.S.S.G. § 1B1.10;
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(2) whether the Commission itself characterized the amendment as a clarification; and (3)
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whether the amendment resolves a circuit conflict.” See U.S. v. Van Alstyne, 584 F.3d
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803, 818 (9th Cir. 2009). 2
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Other circuits have declined to apply Amendment 802 retroactively because it is
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not listed in U.S.S.G. § 1B1.10(d) as a retroactive amendment. See Paulino, 678 F.
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App’x at 58; U.S. v. Gonzalez-Ramos, — F. App’x —, 2017 WL 2533359, at *1 (10th
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Cir. 2017).
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The reasoning of the Third and Tenth Circuits likewise dictates the outcome here.
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Because Amendment 802 is not listed in U.S.S.G. § 1B1.10(d), the first factor of the Van
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Alstyne test cuts against retroactivity. See Van Alystne, 584 F.3d at 818. The second and
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third factors are similarly missing. Petitioner states that his sentence was assessed based
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upon U.S.S.G. § 2L1.2(a), which previously stated that the base offense for “Unlawfully
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Entering or Remaining in the United States” was a level sixteen (16) and currently states
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that the base offense level is eight (8). Dkt. No. 51 at 1. Yet because Amendment 802
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substantively altered the content of the sentencing range, it is not a “clarification” of
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existing law and thus cannot apply retroactively.3 See Aquino, 242 F.3d at 865.
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In sum, because Amendment 802 reduced the sentencing range available under
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§ 21B.1, the amendment should apply retroactively only if retroactivity is consistent with
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a policy statement issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
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Amendment 802, however, is specifically omitted from U.S.S.G. § 1B1.10(d), the
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provision listing retroactive amendments. Accordingly, the Court concludes that
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Amendment 802 is not retroactive under 18 U.S.C. § 3582(c)(2).
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The Van Alstyne test specifically states that courts should look to the “list of retroactive amendments
found in U.S.S.G. § 1B1.10(c).” Id. The Court observes, however, that the list of retroactive
amendments is currently found in U.S.S.G. § 1B1.10(d). See U.S. v. Paulino, 678 F. App’x 57, 58 (3d
Cir. 2017) (“an amendment cannot be applied retroactively if it is not listed in former § 1B1.10(c), now
§ 1B1.10(d).”). Accordingly, the Court looks to § 1B1.10(d).
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Petitioner cites to no authority indicating that there is a circuit split concerning the retroactivity of
Amendment 802 of the U.S.S.G.
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III.
Evidentiary Hearing
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“Unless the motion and the files and records of the case conclusively show that the
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prisoner is entitled to no relief,” the Court must hold an evidentiary hearing on the merits
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of a § 2255 motion. 28 U.S.C. § 2255(b). The Ninth Circuit has explained the “standard
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essentially is whether the movant has made specific factual allegations that, if true, state a
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claim on which relief could be granted.” U.S. v. Schaflander, 743 F.2d 714, 717 (9th Cir.
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1984) (per curiam). Therefore, an evidentiary hearing is unnecessary if the allegations,
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“when viewed against the record, do not state a claim for relief or are so palpably
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incredible or patently frivolous as to warrant summary dismissal.” U.S. v. Leonti, 326
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F.3d 1111, 1116 (9th Cir. 2003) (internal quotation marks omitted).
Petitioner cannot allege a § 2255 claim because he has previously filed another
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§ 2255 motion and has not obtained authorization from the appropriate court of appeals to
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bring another. Furthermore, Petitioner did not state a § 3582 claim because Amendment
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802 is a clarifying amendment, and thus cannot be applied retroactively. Accordingly,
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Petitioner’s claims do not merit holding an evidentiary hearing.
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IV.
Certificate of Appealability
Under AEDPA, a prisoner seeking to appeal a district court’s denial of a habeas
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petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). The
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district court may issue a certificate of appealability “only if the applicant has made a
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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
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satisfy this standard, a petitioner must show that “reasonable jurists would find the
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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
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McDaniel, 529 U.S. 473, 484 (2000).
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For the reasons stated above, Petitioner has not made a substantial showing of the
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denial of a constitutional right. Accordingly, this Court sua sponte DENIES granting
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Petitioner a certificate of appealability.
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CONCLUSION
For the foregoing reasons, this Court DENIES Petitioner’s motion to vacate, set
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aside, or correct sentence under 28 U.S.C. § 2255 and Petitioner’s motion for reduction of
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sentence under 18 U.S.C. § 3582(c)(2).
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IT IS SO ORDERED.
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Dated: September 5, 2017
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