Moya v. USA - 2255
Filing
2
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
:
v.
:
Civil Action No. DKC 16-3447
Criminal No. DKC 04-0064-17
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Petitioner Jose Manuel Moya filed a motion to vacate, set
aside,
or
correct
October 14, 2016.1
sentence
pursuant
ECF No. 531.
to
28
U.S.C.
§
2255
on
He seeks a six (6) month
reduction of his sentence - to a sentence of seventy-two (72)
months.
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
(64) months.
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
1
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.
I.
Background
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.
He
was
sentenced
imprisonment.
The
reduced
June
25,
granted
sentence
Moya’s
to
to
motion
sixty-four
Amendment 782 on July 23, 2015.
II.
2013,
a
78
month
term
of
He did not appeal.
court
his
on
to
reduce
(64)
sentence
months
and
pursuant
to
ECF No. 529.
Motion to Vacate, Set Aside, or Correct Sentence
A.
To
Standard of Review
be
eligible
for
relief
under
28
U.S.C.
§
2255,
a
petitioner must show, by a preponderance of the evidence, that
2
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
2255(a).
of
the
maximum
authorized
by
law[.]”
28
U.S.C.
§
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).
See
But if
the § 2255 motion, along with the files and records of the case,
“conclusively
show[s]
relief,”
claims
denied.
the
that
the
raised
in
prisoner
the
is
motion
entitled
may
be
to
no
summarily
See 28 U.S.C. § 2255(b).
B.
Analysis
Petitioner’s motion to vacate sentence requests a six (6)
month
reduction
of
his
sentence.
He
argues
that
he
is
a
deportable alien and such status renders him ineligible for the
benefits of 18 U.S.C. § 3624(c), which provides inmates with six
(6)
months
in
a
community
corrections
environment
prior
to
release.
Petitioner’s
court
to
reduce
motion
his
for
declaratory
sentence
by
ten
relief
requests
percent
(10%)
the
or,
alternatively, to direct the Bureau of Prisons to transfer him
to a facility that has implemented the Institutional Hearing
3
Program (IHP) because Rivers Correctional Institution, where he
is currently incarcerated, does not offer the program.
is
a
coordinated
Customs
effort
Enforcement
by
the
(ICE),
and
Bureau,
the
the
The IHP
Immigration
Executive
Office
and
for
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
F.2d
455
(5th
Cir.
1985)).
Moreover,
federal
prisoners
are
required to exhaust the administrative remedies provided by the
Bureau of Prisons prior to commencing an action under § 2241.
4
See Pelissero v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999).
Petitioner
is
presently
confined
in
Winton,
North
Carolina,
i.e., outside this district, and there is no indication that he
has exhausted any administrative remedies through the Bureau of
Prisons.
In sum, this court is without authority to grant the relief
requested
by
Petitioner
and
his
motions
will
be
denied
by
separate order.
C.
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
“jurisdictional
prerequisite”
earlier order.
United States v. Hadden, 475 F.3d 652, 659 (4th
Cir. 2007).
to
an
appeal
from
the
court’s
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
this
standard
by
demonstrating
that
reasonable
jurists
would
find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El
5
v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the
record, the court finds that Petitioner does not satisfy the
above standard.
certificate
of
Accordingly, the court will decline to issue a
appealability
on
the
issues
which
have
resolved against Petitioner.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
6
been
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?