Berrelleza-Verduzco v. United States of America

Filing 7

ORDER denying Petitioner's 1 Motion to vacate under 28 U.S.C. § 2255 ; granting Government's 5 Cross-motion to dismiss, by Judge Robert S. Lasnik. (SWT) (cc: Petitioner via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VICTOR BERRELLEZA-VERDUZCO,
Petitioner,

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No. C16-1772RSL
No. CR12-62RSL

v.
UNITED STATES OF AMERICA,

ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255

Respondent.

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This matter comes before the Court on petitioner’s “Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside or Correct A Sentence by a Person in Federal Custody,” Dkt. #1, and the

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government’s “Answer and Cross-Motion to Dismiss Petition,” Dkt. # 5. Having reviewed the

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parties’ briefing and the relevant record, the Court finds and rules as follows.

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In April 2013, pursuant to an agreement with the government, Case No. CR12-62RSL,

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Dkt. # 856, petitioner Victor Berrelleza-Verduzco pled guilty to a series of drug trafficking

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crimes: one count of conspiracy to distribute controlled substances (under 21 U.S.C.

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§§ 841(a)(1), 841(b)(1)(A), & 846); one count of conspiracy to engage in money laundering

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(under 18 U.S.C. §§ 1956(h), 1956(a)(1)(A)(i), & 1956(a)(1)(B)(i)); one count of conspiracy to

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interfere with commerce by robbery (under 18 U.S.C. § 1951); and one count of conspiracy to

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possess firearms in furtherance of a drug trafficking crime (under 18 U.S.C. § 924(o)). Case No.

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CR12-62RSL, Dkt. # 851.

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ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255

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At petitioner’s sentencing in September 2013, petitioner moved to withdraw his guilty

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plea and to substitute counsel. Case No. CR12-62RSL, Dkt. # 1099. After a colloquy with the

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Court, however, petitioner expressed an interest in proceeding with sentencing. Case No. CR12-

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62RSL, Dkt. # 1154 at 3–7. The Court sentenced petitioner to twenty years in custody, followed

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by five years of supervised release. Case No. CR12-62RSL, Dkt. # 1100. Petitioner timely

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appealed the Court’s denial of his motion to withdraw his plea, and on January 23, 2015, the

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Ninth Circuit affirmed. Ninth Circuit Court of Appeals Case No. 13-30262, Dkt. # 41. Twenty-

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one months after the mandate issued in February 2015, petitioner filed the motion to vacate now

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before the Court. Case No. CR12-62RSL, Dkt. # 1368; Dkt. # 1. The government opposes

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petitioner’s motion to vacate his sentence and asks the Court to dismiss it. Dkt. # 5.
Under 28 U.S.C. § 2255, a prisoner in federal custody may move the sentencing court to

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vacate, set aside, or correct his sentence where “the sentence was imposed in violation of the

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Constitution or laws of the United States, or [where] the court was without jurisdiction to impose

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such sentence, or [where] the sentence was in excess of the maximum authorized by law, or is

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otherwise subject to collateral attack . . . .”

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Here, petitioner asks the Court to vacate his sentence pursuant to 28 U.S.C. § 2255 on the

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grounds that his sentence is unconstitutional under Johnson v. United States, 135 S. Ct. 2551

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(2015). In that case, decided June 26, 2015, the Supreme Court invalidated as unconstitutionally

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vague the Armed Career Criminal Act’s residual clause, which defines “violent felony” as “any

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crime punishable by imprisonment for a term exceeding one year . . . that . . . involves conduct

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that presents a serious potential risk of physical injury to another.” Johnson, 135 S. Ct. at 2557.

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On April 18, 2016, the Supreme Court declared this holding retroactive in cases on collateral

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review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

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Because petitioner’s conviction became final more than one year before petitioner filed
this motion, see 28 U.S.C. § 2255(f)(1), petitioner’s motion is untimely. And even if petitioner

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ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255

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could invoke Johnson to invalidate his sentence – which, on the merits, he cannot, as he was not

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convicted under the ACCA’s residual clause or under any similarly-worded statute; nor was he

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sentenced in reliance on Guidelines language similar to the residual clause – petitioner filed this

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motion over one year after Johnson was decided. Accordingly, petitioner’s motion is untimely

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even under 28 U.S.C. § 2255(f)(3).

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For all of the foregoing reasons, petitioner’s motion under 28 U.S.C. § 2255 (Dkt. # 1) is

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DENIED. The government’s cross-motion to dismiss (Dkt. # 5) is GRANTED. Because

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petitioner has failed to make a substantial showing of the denial of a constitutional right, the

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Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). The Clerk of

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Court is directed to close the case.

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Dated this 30th day of May, 2017.

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A

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Robert S. Lasnik
United States District Judge

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ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255

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