Sanabria-Bolanos v. United States of America

Filing 31

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 12 MOTION for Order, 14 MOTION to Amend/Correct, 15 MOTION to Amend, 16 MOTION to Amend, 17 MOTION to Amend, 27 MOTION for Order, 28 MOTION for Order, 29 MOTION for Order, 30 MOTION for Order, and 1 Motion to Vacate/Set Aside/Correct Sentence (2255). (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

MILTON ENRIQUE SANABRIA-BOLANOS,
Movant,
vs.

No. CV 15-00835 KG/SCY
No. CR 14-02117 KG

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Movant Milton Enrique Sanabria-Bolanos’
Motion to Vacate, Set Aside or Correct Sentence Pursuant Section 2255 (“Motion”) (CV Doc. 1;
CR Doc. 55), Notice and Motion to Vacate Verdict/Plea and Dismiss Indictment With Prejudice
(CV Doc. 14, 16; CR Doc. 64, 66), and Ineffective Assistance of Counsel (CV Doc. 15, 17; CR
Doc. 65, 67). The Court will construe Sanabria-Bolanos’ Notice and Motion to Vacate and his
Ineffective Assistance of Counsel as requests to amend his 28 U.S.C. § 2255 Motion, will deny
the requests, and will dismiss his § 2255 Motion.
On September 10, 2014 Sanabria-Bolanos pled guilty to a one-count indictment charging
Reentry of a Removed Alien in violation of 8 U.S.C. §§ 1326(a) and (b). (CR Doc. 16, 26, 27).
Sanabria-Bolanos was sentenced and final judgment was entered by the Court on February 3,
2015. (CR Doc. 30, 31). Sanabria-Bolanos appealed his sentence to the United States Court of
Appeals for the Tenth Circuit on March 3, 2015. (CR Doc. 38) The Judgment was affirmed by

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that Court by Order dated August 11, 2015, and the Mandate issued on September 2, 2015. (CR
Doc. 54).
Sanabria-Bolanos filed his original § 2255 Motion to vacate his sentence on September
21, 2015. (CV Doc. 1; CR Doc. 55). His original Motion sought correction of his sentence
because (1) he qualifies for the Fast Track Program, (2) his counsel requested a downward
departure which was denied even though the facts are conclusive and should have been taken
into consideration, (3) because “affidavits and reliable witness testimony, as well the
Probationary Report dictated a downward departure,” and (4) the 16-level enhancement was
inappropriately applied. (CV Doc. 1 at 2; CR Doc. 55 at 2). The Court ordered the United States
to answer the original §2255 Motion, and the United States’ Response to Defendant’s Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 was filed on December 8, 2015.
(CV Doc. 8; CR Doc. 58).
His Notice of and Motion to Vacate Verdict/Plea and Dismiss Indictment With Prejudice
Failure to Establish Jurisdiction (CV Doc. 14, 16; CR Doc. 64, 66) (“Notice and Motion-Failure
to Establish Jurisdiction”) was then filed on March 25, 2016. In the Notice and Motion-Failure
to Establish Jurisdiction, Sanabria-Bolanos argues that in his criminal proceeding the United
States failed to establish special maritime or territorial jurisdiction under 18 U.S.C. § 7(c) and, as
a result, failed to rebut the presumption against federal jurisdiction over acquired land. (CV Doc.
14 at 1; CR Doc. 64 at 1).
Also on March 25, 2016, Sanabria-Bolanos filed his document titled “Ineffective
Assistance of Counsel.” (CV Doc. 15, 17; CR Doc. 65, 67). He claims that his counsel was
ineffective (1) in failing to disclose a conflict of interest, (2) because he did not understand his
plea, (3) in failing to have him remanded into immigration custody so he could have his asylum

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claim proceed concurrently with his criminal sentence, and (4) in failing to raise and preserve
issues relating to his asylum claim on appeal. (CV Doc. 15, 17; CR Doc. 65, 67). The United
States objected to both the Notice and Motion-Failure to Establish Jurisdiction and Ineffective
Assistance of Counsel filings on the grounds that they are properly construed as motions to
amend and should be denied because they could have been, but were not, raised in his original §
2255 Motion. (CV Doc. 18-1; CR Doc. 68-1).
On May 9, 2016, Sanabria-Bolanos filed his Notice of Timely and Sufficient Reservation
and Preservation of Right (28 U.S.C. 2255(F)(3) Under Johnson v. United States (CV Doc. 21;
CR Doc. 70). The Court construed his Notice of Timely and Sufficient Reservation as a request
to amend his existing 2255 motion to include a claim for relief under Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2551, 2556 (2015), and denied his request to amend on the grounds that
he is clearly ineligible for relief under Johnson and amendment of his 2255 motion would be
futile. (CV Doc. 23; CR Doc. 74). See United States v. Ohiri, 133 Fed. App’x 555, 559 (10th Cir.
2005); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). Sanabria-Bolanos filed the same
Notice in the Tenth Circuit and, on June 6, 2016, was similarly denied leave to proceed under §
2255 on the grounds that he is ineligible for Johnson relief. (CV Doc. 25; CR Doc. 75).
DENIAL OF LEAVE TO AMEND
At the time of filing of his March 25, 2016, Notice and Motion-Failure to Establish
Jurisdiction and Ineffective Assistance of Counsel, Sanabria-Bolanos’ original §2255 Motion
was still pending on the merits. As such, the March 25, 2016, filings are properly treated as
requests to amend his original Motion. United States v. Ohiri, 133 Fed. App’x at 559. The
Court will deny leave to amend on the grounds that the issues raised in the March 25, 2016,

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filings were available and should have been asserted in his original Motion and allowing
Sanabria-Bolanos leave to amend would be futile.
Rule 2 of the Rules Governing Section 2255 Proceedings governs the form of motions to
vacate, set aside, or correct a sentence. That rule states that “[t]he motion must: (1) specify all
grounds for relief available to the moving party.” Rule 2(b)(1) of the Rules Governing Section
2255 Proceedings (emphasis added). Both his argument that the United States failed to establish
jurisdiction in his criminal case and his argument that criminal trial and appellate counsel were
ineffective were grounds available to Sanabria-Bolanos at the time he filed his § 2255 Motion in
September, 2015. Under Rule 2, he was mandatorily required to specify those grounds in his
original filing, but failed to do so. Sanabria-Bolanos may not seek to raise new issues in a
piecemeal manner and in violation of the requirements of Rule 2(b)(1).
Further, although the Court is to grant amendments freely when justice requires, the
Court should deny a request to amend where the proposed amendment would be futile. Jefferson
Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999).
The amendments proposed by Sanabria-Bolanos would be futile. First, the special maritime and
territorial jurisdiction of the United States has no application to Sanabria-Bolanos criminal
prosecution and the United States was not required to establish special territorial jurisdiction
over acquired lands. See 18 U.S.C. §7(3). Second, Sanabria-Bolanos conclusory claim of a
conflict of interest by counsel is unsupported by any facts and his appointed criminal defense
counsel had no ability or duty to assert his asylum claim issues in his criminal case. SanabriaBolanos would not be eligible for § 2255 relief based on either his jurisdictional or ineffective
assistance of counsel arguments and allowing him to amend to add them would be futile. Curley
v. Perry, 246 F.3d at 1284.

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DENIAL OF § 2255 RELIEF
In his original § 2255 Motion, Sanabria-Bolanos raises four grounds for relief:
(1) he qualifies for the Fast Track Program, (2) his counsel requested a
downward departure which was denied even though the facts are conclusive
and should have been taken into consideration, (3) because “affidavits and
reliable witness testimony, as well the Probationary Report dictated a downward
departure,” and (4) the 16-level enhancement was inappropriately applied.
(CV Doc. 1 at 2; CR Doc. 55 at 2). The United States raises the issue of procedural default with
respect to all four issues. (CV Doc. 8 at 6-9; CR Doc. 58 at 6-9). The general rule in cases under
28 U.S.C. § 2255 is that a defendant must raise a claim on direct appeal or the defendant is
barred from seeking relief on the claim by collateral review. When a defendant fails to raise an
issue on direct appeal, he is barred from raising that issue in a § 2255 motion unless he can show
cause excusing his procedural default and actual prejudice resulting from the claimed error, or
can show that a fundamental miscarriage of justice will occur if the issue is not addressed.
United States v. Hollis, 552 F.3d 1191, 1193–94 (10th Cir.2009).
Sanabria-Bolanos did not raise any of the four issues in his direct appeal. See CR Doc.
54-1. Nor does he show any cause to excuse his procedural default in failing to raise the issues
on appeal from his conviction and sentence.

Further, even if Sanabria-Bolanos could

demonstrate cause to excuse the procedural default, he would be unable to establish actual
prejudice from any of the claimed errors or a fundamental miscarriage of justice if those issues
are not addressed. First, although he now claims he qualified for the Fast Track Program, the
record establishes that he was offered a fast-track plea agreement, but he rejected the offer. See
Tr. 2/3/15 at 7-11. With respect to his second and third issues, the record also demonstrates that
the Court considered the arguments and evidence presented by Sanabria-Bolanos in support of
his request for a downward departure and concluded that such a departure was not warranted.

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Tr. 2/3/15 at 2-10, 11-14. Sanabria-Bolanos’ disagreement with the Court’s ruling does not
constitute legal or factual error that would support § 2255 relief. Last, the 16-level enhancement
was properly applied by the Court and similarly does not constitute judicial error. See USSG §
2L1.2(b)(1)(A)(ii); United States v. Juarez-Galvan, 572 F.3d 1156, 1161 (10th Cir. 2009).
The four issues raised by Sanabria-Bolanos are without merit and Sanabria-Bolanos
cannot demonstrate either prejudice or a fundamental miscarriage of justice. All four claims are
barred by his procedural default in failing to raise them in his direct appeal. United States v.
Hollis, 552 F.3d at 1193–94. Therefore, the Court will deny his § 2255 Motion.
DENIAL OF ALL REMAINING MOTIONS
Also pending before the Court are three motions to strike unsigned filings (CV Doc. 12,
27, 28; CR Doc. 62) and two motions requesting the status of Sanabria-Bolanos’ § 2255 Motion
(CV Doc. 29, 30; CR Doc. 76, 77). All three of the motions to strike unsigned filings are
directed to the United States’ Response to the § 2255 Motion (CV Doc. 8; CR Doc. 58) and
claim that the Response does not have a valid electronic signature. The United States’ Response
was properly filed through the Court’s CM/ECF system in accordance with the Court’s rules and
proper electronic filing constitutes the valid electronic signature. See D.N.M. LR-Civ. 11.1. The
three motions to strike are without merit and will be denied. Last, the two motions requesting
the status of the § 2255 Motion will be denied as moot in light of this Memorandum Opinion and
Order.
IT IS ORDERED:
(1) Movant Milton Enrique Sanabria-Bolanos’ Notice and Motion-Failure to Establish
Jurisdiction and Ineffective Assistance of Counsel (CV Doc. 14, 15, 16, 17; CR Doc. 64, 65, 66,
67), which are construed as requests to amend, are DENIED;

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(2) Movant Sanabria-Bolanos’ Motion to Strike Unsigned Filing (CV Doc. 12, CR Doc.
62), Motion to Strike Unsigned Filing (CV Doc. 27), Motion to Strike Unsigned Filing (CV Doc.
28), Motion for Status (CV Doc. 29; CR Doc. 76) and Motion for Status (CV Doc. 30; CR Doc.
77) are DENIED; and
(3) Movant Sanabria-Bolanos’ Motion to Vacate, Set Aside or Correct Sentence Pursuant
to Section 2255 (CV Doc. 1; CR Doc. 55) is DENIED and judgment will be entered dismissing
his § 2255 claims.

__________________________________
UNITED STATES DISTRICT JUDGE

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