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Saenz v. United States

United States District Court, D. Hawaii

October 26, 2016

JORGE SAENZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civ. No. 16-00355 SOM-KSC

          ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE.

         Petitioner Jorge Saenz is serving a 136-month prison term, having pled guilty to having possessed with intent to distribute 50 grams or more of methamphetamine and carrying a firearm during and in relation to a drug trafficking crime. Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), Saenz now seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He argues that he should not have been convicted or sentenced under 18 U.S.C. § 924(c) because that statute allegedly includes unconstitutionally vague references to a “crime of violence.” This court denies Saenz's petition without an evidentiary hearing, concluding that the term “crime of violence” was irrelevant to his conviction or sentence. This court also declines to issue a certificate of appealability.

         I. STANDARD OF REVIEW.

         Under 28 U.S.C. § 2255, a court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration on any of the following four grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). It is not entirely clear whether Saenz is challenging both his § 924(c) conviction and his sentence, but the court assumes for purposes of this order that he is challenging both. To obtain relief from a conviction under § 2255, a petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

         A petitioner must file his or her § 2255 motion within the one-year statute of limitations set forth in § 2255(f). The limitations period runs one year from the latest of four dates: (1) when the judgment of conviction becomes final; (2) when the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) when the right asserted is initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; and (4) when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

         A § 2255 petition cannot be based on a claim that has already been disposed of by the underlying criminal judgment and ensuing appeal. As the Ninth Circuit stated in Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970), “Having raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under § 2255.”

         Even when a § 2255 petitioner has not raised an alleged error at trial or on direct appeal, the petitioner is procedurally barred from raising an issue in a § 2255 petition if the issue could have been raised earlier, unless the petitioner can demonstrate both “cause” for the delay and “prejudice” resulting from the alleged error. In United States v. Frady, 456 U.S. 152, 167-68 (1982), the Court said, “[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause' excusing his double procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.” Accord Davis v. United States, 411 U.S. 233, 242 (1973). To show “actual prejudice, ” a § 2255 petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170.

         A judge may dismiss a § 2255 petition if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Section 2255 Rules. A court need not hold an evidentiary hearing if the allegations are “palpably incredible” or “patently frivolous” or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a “district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief”).

         II. FACTUAL BACKGROUND.

         On November 7, 2008, Saenz agreed in a telephone conversation to sell a half-pound of crystal methamphetamine to a person who, unbeknownst to Saenz, was cooperating with the Government. See Memorandum of Plea Agreement, ECF No. 31, PageID # 54.[1] That day, at around 2:45 p.m., law enforcement agents saw Saenz drive a car to the agreed-upon location. See id. The agents stopped Saenz's car and arrested Saenz and the passenger in his car. See id., PageID # 55. During searches incident to the arrests, the agents seized a loaded .380 caliber semi-automatic pistol, a plastic bag containing approximately one-half ounce of a substance that was later confirmed to be methamphetamine, and a cup containing approximately 2 ounces of a substance that was later confirmed to be methamphetamine. See id.

         On November 19, 2008, the Government filed an indictment against Saenz, charging him with possessing with intent to distribute 50 grams or more of methamphetamine in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count 1) and with carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2). See Indictment, ECF No. 11, PageID #s 18-19. On April 24, 2009, Saenz pled guilty to both counts pursuant to a plea agreement. See ECF No. 31, PageID #s 30-31. This court sentenced Saenz to 102 months for Count 1, and to 54 months for Count 2 running consecutively to the sentence for Count 1. See ECF No. 39. His total prison time was thus 156 months. See Id. Judgment was entered on October 23, 2009. See ECF No. 43. In his plea agreement, Saenz had limited his right to appeal, and he filed no appeal.[2]

         On March 19, 2015, this court reduced Saenz's sentence under 18 U.S.C. § 3582(c)(2) based on the retroactive application of Amendment 782 to the drug quantity calculations in the Sentencing Guidelines. See Order Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2), ECF No. 46, PageID # 124. Saenz's reduced sentence for Count 1 was 82 months in prison. See id. The consecutive term of 54 months on Count 2 remained the same, meaning that the new sentence provided for a total of 136 months in prison. See id.

         On June 22, 2016, Saenz mailed a letter to this court stating his intent to file a motion under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S.Ct. 2551 (2015). See Letter from Jorge Saenz, ECF No. 47, PageID # 125. Johnson, decided on June 26, 2015, held that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process.” Johnson, 135 S.Ct. at 2563. The “residual clause” analyzed in Johnson appears in 18 U.S.C. § 924(e). See id. at 2555. Section 924(e)(1) provides for enhanced penalties for a person convicted of violating 18 U.S.C. § 922(g) if the person has three prior convictions for either a “violent felony” or a serious drug offense. See id. Johnson was convicted under § 922(g) of being a felon in possession of a firearm, and he had three prior convictions for a “violent felony.” See id. at 2556. The term “violent felony” was defined in § 924(e)(2)(B) as including a felony having “as an element the use, attempted use, or threatened use by physical force, ” a felony that was “burglary, arson, or extortion, [or] involves the use of explosives, ” or a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See id. at 2555-56. The Supreme Court concluded that the “otherwise involves” language, which it called the “residual clause, ” was unconstitutionally vague. See id. at 2557-60. The Court therefore held that Johnson's sentence should not have been enhanced under the residual clause. See id. at 2563.

         On June 24, 2016, Saenz, proceeding pro se, placed his Johnson-related § 2255 motion in the prison mail system. See Saenz's Motion Under 28 U.S.C. § 2255, ECF No. 49, PageID #s 141-43. This court received and filed his motion on June 27, 2016. See id., PageID # 129. In his motion, Saenz contends that the language of 18 U.S.C. § 924(c) and of the sentencing guidelines is unconstitutionally vague insofar as that language uses the term “crime of violence.” See id., PageID # 133. Saenz appears to argue that the Supreme Court's holding in Johnson nullifies as unconstitutionally vague ...


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