Estrada v. USA

Filing 3

MEMORANDUM DECISION AND ORDER. Rubelo Estradas Motion to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1 ) is DISMISSED for lack of jurisdiction. The Clerk of Court shall forward a copy of (1) this Order, and (2) Rub elo Estradas § 2255 Motion to the Ninth Circuit Court of Appeals. The Clerk of Court shall close this case. If the Ninth Circuit Court of Appeals subsequently authorizes the filing of this second or successive § 2255 Motion with this Court, the case will be reopened. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,

Case No. 1:13-cv-00354-BLW
1:03-cr-00094-BLW
MEMORANDUM DECISION AND
ORDER

v.
RUBELO ESTRADA,
Defendant-Movant.

INTRODUCTION
Pending before the Court is Rubelo Estrada’s (“Estrada”) Motion to Vacate/Set
Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1). Having reviewed the
Motion and the underlying record, the Court enters the following Order dismissing the
Motion.
BACKGROUND
Estrada was charged in the Indictment (Crim. Dkt. 1) in this multi-defendant case
with one count of conspiracy to possess with intent to distribute methamphetamine in
violation of 21 U.S.C. § 846, § 841(a)(1) and § 841(b)(1)(B). The Government
subsequently filed an Information Pursuant to Title 21, United States Code, § 851
Regarding Increased Punishment by Reason of Prior Convictions (Crim. Dkt. 79). The
MEMORANDUM DECISION AND ORDER - 1

Government again charged Estrada in the Superseding Indictment (Crim. Dkt. 96) with
the conspiracy count. Finally, the Government filed the Second Superseding Indictment
(Crim. Dkt. 144) charging Estrada with the conspiracy count and an additional ten counts
of using a telephone in commission of the conspiracy offense in violation of 21 U.S.C.
§ 843(b). The case proceeded to trial. Prior to submission of the case to the jury, and at
the Government’s request, the Court dismissed three of the telephone counts against
Estrada. The jury convicted Estrada of all remaining counts. Minutes and Form of
Verdict (Crim. Dkts. 269 and 270).
Overruling Estrada’s sentencing objections, the Court sentenced Estrada pursuant
to § 4B1.1, the Career Offender Guideline, to a term of imprisonment of 360 months to
be followed by 8 years of supervised release on the conspiracy count and to terms of
imprisonment of 96 months to be followed by 4 years of supervised release on each of the
telephone counts, all terms to run concurrently. Judgment (Crim. Dkt. 322).
Estrada timely appealed the denial of his motion for a new trial and the alleged
unconstitutionality of his sentence. While his appeal was pending, the United States
Supreme Court decided United States v. Booker, 125 S.Ct. 738 (2005), which effectively
rendered the United States Sentencing Guidelines advisory. Estrada requested a remand
for resentencing. The Ninth Circuit affirmed his conviction but remanded the case
pursuant to Booker and United States v. Ameline, 409 F.3d 1073, 1083 (9th Cir. 2005) (en
banc), for the limited purpose of determining whether the Court would have imposed a
materially different sentence had the Guidelines been advisory. United States v. Estrada,
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No. 04-30336 (9th Cir. Nov. 18, 2005) (Crim. Dkt. 361). On remand, the Court, after
considering the parties’ resentencing memoranda and original sentencing memoranda,
declined to resentence concluding that the sentence would not have been materially
different under advisory Guidelines. Order (Crim. Dkt. 368).
Estrada again timely appealed arguing that the Court failed to provide him with an
“appropriate explanation” for denying resentencing. However, the Ninth Circuit affirmed
the sentence determining that the sentence comported with the directives of Ameline and
was reasonable. United States v. Estrada, No. 06-30148 (9th Cir. Jan. 10, 2007) (Crim.
Dkt. 375). Estrada thereafter filed a § 2255 Motion alleging (1) that his sentence on the
conspiracy charge was above the statutory maximum, (2) that his sentence should be reexamined in light of Rita and Cunningham, (3) ineffective assistance of trial counsel, and
(4) ineffective assistance of counsel on appeal. See Case No. 1:07-cv-00367-BLW. The
Court dismissed the § 2255 Motion in its entirety. Mem. Dec. and Order, Dkt. 9 in Case
No. 1:07-cv-00367-BLW.
On November 6, 2008, and January 12, 2011, Estrada sought leave from the Ninth
Circuit Court of Appeals to file a second or successive § 2255 motion. The applications
were denied on December 3, 2008, and March 18, 2011, respectively. See Ninth Circuit
Orders, Dkts. 11 and 12 in Case No. 1:07-cv-00367-BLW.
On August 13, 2013, Estrada filed the pending § 2255 Motion seeking relief under
the United States Supreme Court’s June 17, 2013 decision in Alleyne v. United States,
133 S. Ct. 2151 (2013), which held that any fact that increases the mandatory minimum
MEMORANDUM DECISION AND ORDER - 3

sentence is an element of the offense that must be submitted to a jury. He specifically
moves pursuant to § 2255(f)(3) which extends the time for filing a § 2255 motion in the
circumstances discussed below.
DISCUSSION
A § 2255 motion must be filed within one year from, as relevant here, the latest of
either “the date upon which the judgment of conviction becomes final,” or “the date on
which the right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.” 28 U.S.C. §§ 2255(f)(1) and (3).
Estrada recognizes that his Motion is untimely under § (f)(1) and accordingly
moves under § 2255(f)(3). Given that he filed his § 2255 Motion within less than a
month after Alleyene was decided, Estrada’s Motion would be timely if this were his first
§ 2255 motion and the Court were to find that Alleyne not only recognized a new rule of
constitutional law but also was made retroactive to cases on collateral review. However,
as noted above, he previously filed a § 2255 motion which the Court dismissed in its
entirety. Therefore, Estrada must first have his pending § 2255 motion certified by the
Ninth Circuit Court of Appeals to contain, as relevant here, “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court that was
previously unavailable.” See 28 U.S.C. § 2255(h)(2). Without the certification from the
Ninth Circuit, this Court has no jurisdiction to consider the merits of the pending § 2255
Motion.
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Ninth Circuit Rule 22-3 provides that “[if] a second or successive petition or
motion, or an application for authorization to file such a petition or motion, is mistakenly
submitted to the district court, the district court shall refer it to the court of appeals. See
9th Cir. R. 22-3(a). Accordingly, the Court will forward Estrada’s § 2255 Motion to the
Ninth Circuit for its consideration.
ORDER
IT IS ORDERED:
1. Rubelo Estrada’s Motion to Vacate/Set Aside/Correct Sentence Pursuant to
28 U.S.C. § 2255 (Civ. Dkt. 1) is DISMISSED for lack of jurisdiction.
2. The Clerk of Court shall forward a copy of (1) this Order, and (2) Rubelo
Estrada’s § 2255 Motion to the Ninth Circuit Court of Appeals. The district
court’s file in this case is available for review online at
www.id.uscourts.gov.
3. The Clerk of Court shall close this case. If the Ninth Circuit Court of
Appeals subsequently authorizes the filing of this second or successive
§ 2255 Motion with this Court, the case will be reopened.
DATED: October 28, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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