Iracheta v. USA

Filing 7

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED as follows:1. The Governments Motion to Dismiss (CV Dkt. 6 ) is GRANTED. 2. Petitioners § 2255 Motion to Vacate, Correct, or Set Aside his Sentence (CR Dkt. 41) (CV Dkt. 1 ) is DENIED. 3. Petitioners Motion Requesting Appointment of Counsel (CV Dkt. 2 ) is DENIED. 4. Certificate of Appealability is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT IRACHETA,

Case No. 1:16-CV-00305-EJL
1:15-CR-00103-EJL

Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
UNITED STATES OF AMERICA,

Respondent.

INTRODUCTION
Before the Court in the above-entitled matter are Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 and Motion for Requesting
Appointment of Counsel. (CV Dkt. 1, 2.)1 The Government has filed a Motion to
Dismiss. (CV Dkt. 6.) Because it is clear that Petitioner has failed to state a claim, or has
“no more than conclusory allegations, unsupported by facts and refuted by the record,”
this Court denies the § 2255 Motion without an evidentiary hearing. United States v.
Quan, 789 F.2d 711, 715 (9th Cir. 1986).

1

In this Order, the Court will use (CR Dkt. ) when citing to the criminal case (1:15-cr103-EJL) and (CV Dkt. ) when citing to the civil case (1:16-cv-00305-EJL).

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
On August 27, 2015, Petitioner, Robert Iracheta, plead guilty to Possession of a
Controlled Substance with Intent to Distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(viii) and Possession of a Firearm in Furtherance of a Drug Trafficking Offense
in violation of 18 U.S.C. § 924(c)(1)(A). (CR Dkt. 23, 24.) This Court sentenced Mr.
Iracheta on November 24, 2015 to 120 months on the drug charge and 60 months on the
firearms charge to run consecutively for a total of 180 months imprisonment to be
followed by a term of supervised release. (CR Dkt. 38, 39.) No appeal was filed.
On July 5, 2016, Mr. Iracheta filed the instant § 2255 Motion seeking to correct
his sentence in light of the Supreme Court’s decision in Johnson v. United States, 135
S.Ct. 2251 (2015) and Motion for Appointment of Counsel. (CR Dkt. 41) (CV Dkt. 1, 2.)
The Government has filed a Motion to Dismiss arguing Johnson does not apply to this
case. (CV Dkt. 6.)
DISCUSSION
Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move
the court that imposed the sentence to vacate, set aside, or correct the sentence on the
ground that:
[T]he sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack....
28 U.S.C. § 2255.

MEMORANDUM DECISION AND ORDER - 2

The Supreme Court in Johnson held that the residual clause of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which imposes a minimum 15 year
sentence for individuals who had three or more prior convictions for a “violent felony,”
to be unconstitutionally vague and violated due process. See Johnson, 135 S.Ct. at 255760. The “residual clause” defined “violent felony” to include a felony that “involves
conduct that presents a serious potential physical risk of physical injury to another.” See
id.
In this case, Mr. Iracheta was subject to an increased penalty pursuant to 18 U.S.C.
§ 924(c)(1)(A) and (2) because he possessed a firearm in furtherance of a drug trafficking
offense. The “crime of violence” subsection, 18 U.S.C. § 924(c)(3), and its residual
clause did not apply. Therefore, the Johnson decision does not apply here and Mr.
Iracheta is not entitled to relief on his § 2255 Motion. See United States v. Gibson, Cr.
No. 3:09-931-CMC, 2016 WL 4196657, at *2 (D.S.C. Aug. 9, 2016); Eldridge v. United
States, No. 16-cv-3173, 2016 WL 4062858, at *3 (C.D. Ill. July 29, 2016). The
Government’s Motion to Dismiss is granted. (CV Dkt. 6.) The Petitioner’s Motion for
Appointment of Counsel is denied. (CV Dkt. 2.)
The Court also denies issuance of a certificate of appealability (COA). “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), Rules Governing § 2255 Proceedings. A COA
should issue as to those claims on which the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is satisfied if
“jurists of reason could disagree with the district court's resolution of [the] constitutional
MEMORANDUM DECISION AND ORDER - 3

claims” or “conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Here, Mr. Iracheta has not shown the deprivation
of any constitutional right as no reasonable jurist would disagree that Johnson does not
apply to this case.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1.

The Government’s Motion to Dismiss (CV Dkt. 6) is GRANTED.

2.

Petitioner’s § 2255 Motion to Vacate, Correct, or Set Aside his Sentence
(CR Dkt. 41) (CV Dkt. 1) is DENIED.

3.

Petitioner’s Motion Requesting Appointment of Counsel (CV Dkt. 2) is
DENIED.

4.

Certificate of Appealability is DENIED.

DATED: October 21, 2016

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 4