Turner v. USA

Filing 2

ORDER Dismissing Petition to Vacate under 28 USC 2255. The Court summarily DISMISSES Defendant's motion.The Court DECLINES to issue a Certificate of Appealability because Defendant has not made a substantial showing of the denial of a constitu tional right. See 28 U.S.C. §2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483 (2000). The Clerk of Court isinstructed to enter judgment accordingly in the related civil case. Signed by Judge Michael M. Anello on 11/29/2017.(All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 12cr286-MMA-1
Related Case No.: 17cv2311-MMA-1

UNITED STATES OF AMERICA,
Plaintiff,

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v.

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ELISA TURNER (1),

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ORDER SUMMARILY DISMISSING
DEFENDANT’S MOTION TO
VACATE AND CORRECT
SENTENCE PURSUANT TO 28
U.S.C. § 2255

Defendant.

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[Doc. No. 436]

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On January 24, 2012, Defendant Elisa Turner was charged in a single-count

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Indictment with conspiracy to distribute methamphetamine, in violation of Title 21,

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United States Code, section 841(a)(1) and 846. Defendant pleaded guilty as charged, and

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was sentenced to a 188-month term of imprisonment. See Doc. No. 353. Defendant now

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moves to vacate and correct her sentence pursuant to Title 28, section 2255, based upon

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the application of California Proposition 47, the Safe Neighborhoods and Schools Act,

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Cal. Penal Code § 1170.18, which enabled her to reclassify two California felony drug

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convictions to misdemeanors. See Doc. No. 436. For the reasons set forth below, the

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Court summarily DISMISSES Defendant’s motion.
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12cr286-MMA-1

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DISCUSSION

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Section 2255 provides that if a defendant’s motion, file, and records “conclusively

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show that the movant is entitled to no relief” the Court summarily may dismiss the

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motion without sending it to the United States Attorney for response. See 28 U.S.C. §

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2255(b). The rules regarding Section 2255 proceedings similarly state that the Court

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summarily may order dismissal of a 2255 motion without service upon the United States

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Attorney only “[i]f it plainly appears from the face of the motion, any attached exhibits,

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and the record of prior proceedings that the moving party is not entitled to relief . . . .”

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Rule 4 of the Rules Governing Section 2255 Proceedings. Thus, when a movant fails to

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state a claim upon which relief can be granted, or when the motion is incredible or

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patently frivolous, the district court may summarily dismiss the motion. Cf. United States

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v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989); Marrow v. United States, 772 F.2d 525,

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526 (9th Cir. 1985).

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Defendant’s motion is time-barred under Section 2255(f) and therefore subject to

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summary dismissal.1 See 28 U.S.C. § 2255(f)(1) (one-year limitations period for filing a

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2255 motion, which generally runs from the date on which the judgment of conviction

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became final). Defendant’s claim also fails on the merits under United States v. Diaz,

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

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

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federal law.” United States v. Vazcones, No. 13cr3309-MMA, 2017 U.S. Dist. LEXIS

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53937, at *7 (S.D. Cal. Apr. 7, 2017); see also United States v. Menchaca, 2017 U.S.

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Dist. LEXIS 16565, 2017 WL 475324, at *4-*5 (N.D. Cal. Feb. 6, 2017) (“Even if

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The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of
the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153
F.3d 925, 929 (9th Cir. 1998) (noting that a “district court has discretion to deny an evidentiary hearing
on a Section 2255 claim where the files and records conclusively show that the movant is not entitled to
relief”). Here, a review of the record conclusively establishes that Defendant’s motion is untimely, and
she is not otherwise “entitled to relief.” Therefore, an evidentiary hearing is neither warranted nor
required.
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12cr286-MMA-1

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defendant demonstrated that one of the predicate felony convictions underlying his career

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offender status was reduced to a misdemeanor under state law, the holding of Diaz, that

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reclassification pursuant to Proposition 47 does not apply retroactively for purposes of a

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federal sentencing enhancement, controls.”).

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CONCLUSION
Based on the foregoing, the Court summarily DISMISSES Defendant’s motion.

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The Court DECLINES to issue a Certificate of Appealability because Defendant has not

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made a substantial showing of the denial of a constitutional right. See 28 U.S.C. §

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2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483 (2000). The Clerk of Court is

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instructed to enter judgment accordingly in the related civil case.
IT IS SO ORDERED.
DATE: November 29, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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12cr286-MMA-1