Moya v. USA - 2255
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 4/17/2017. (kns, Deputy Clerk)(c/m 4/17/17)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSE MANUEL MOYA
Civil Action No. DKC 16-3447
Criminal No. DKC 04-0064-17
UNITED STATES OF AMERICA
Petitioner Jose Manuel Moya filed a motion to vacate, set
October 14, 2016.1
ECF No. 531.
He seeks a six (6) month
reduction of his sentence - to a sentence of seventy-two (72)
The court issued an Order on November 9, 2016, advising
Moya that it previously granted him a motion to reduce sentence
pursuant to Amendment 782 and reduced his sentence to sixty-four
The court directed the clerk to mail a copy of the
sentence reduction order to Moya and provided him time to advise
the court whether, after review of the sentence reduction order,
he still wished the court to consider his motion to vacate, set
aside or correct sentence.
ECF No. 532.
On December 15, Moya
advised the court that he did desire the court to adjudicate his
As pointed out by the government, the petition is likely
untimely, having been filed more than one year after the
conviction became final. 28 U.S.C. § 2255(f).
motion to vacate, set aside or correct sentence.
ECF No. 533.
The same date, Moya also filed a motion for declaratory relief
or, alternatively, for an immigration departure.
ECF No. 534.
The government filed a response in opposition to both motions.
ECF No. 537.
Petitioner has not filed a reply.
The issues are
fully briefed and the court now rules pursuant to Local Rule
105.6, no hearing being deemed necessary.
For the reasons that
follow, both motions will be denied.
On February 11, 2013, Jose Manuel Moya pled guilty to Count
One of the Superseding Indictment charging him with conspiracy
to distribute and possess with intent to distribute five (5)
kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
Amendment 782 on July 23, 2015.
He did not appeal.
ECF No. 529.
Motion to Vacate, Set Aside, or Correct Sentence
Standard of Review
petitioner must show, by a preponderance of the evidence, that
his “sentence was imposed in violation of the Constitution or
jurisdiction to impose such sentence, or that the sentence was
A pro se movant, such as Petitioner, is entitled to
have his arguments reviewed with appropriate consideration.
Gordon v. Leeke, 574 F.2d 1147, 1151–53 (4th Cir. 1978).
the § 2255 motion, along with the files and records of the case,
See 28 U.S.C. § 2255(b).
Petitioner’s motion to vacate sentence requests a six (6)
deportable alien and such status renders him ineligible for the
benefits of 18 U.S.C. § 3624(c), which provides inmates with six
alternatively, to direct the Bureau of Prisons to transfer him
to a facility that has implemented the Institutional Hearing
Program (IHP) because Rivers Correctional Institution, where he
is currently incarcerated, does not offer the program.
Immigration Review (EOIR), to provide deportation, exclusion, or
removal proceedings to sentenced aliens.
Relief under 28 U.S.C. § 2255 is available only upon a
petitioner proving by a preponderance of the evidence that his
“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[.]”
It does not permit a court to
modify a lawful sentence, as Petitioner requests here.
To the extent Petitioner challenges the execution of his
sentence, rather than its imposition, his claim may fall within
the purview of 28 U.S.C. § 2241.
Petitions under this section,
however, must be filed “in the district of confinement rather
than in the sentencing court.”
United States v. Miller, 871
F.2d 488, 490 (4th Cir. 1989) (citing United States v. Brown, 753
required to exhaust the administrative remedies provided by the
Bureau of Prisons prior to commencing an action under § 2241.
See Pelissero v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999).
i.e., outside this district, and there is no indication that he
has exhausted any administrative remedies through the Bureau of
In sum, this court is without authority to grant the relief
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.
A certificate of appealability is a
United States v. Hadden, 475 F.3d 652, 659 (4th
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El
v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the
record, the court finds that Petitioner does not satisfy the
Accordingly, the court will decline to issue a
resolved against Petitioner.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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