Vega v. United States
| Decision Date | 09 July 2014 |
| Docket Number | 1:13-cv-01268-AWI,1:09-cr-00335-AWI |
| Court | U.S. District Court — Eastern District of California |
| Parties | RICARDO ENRIQUE VEGA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
(Docs. 72, 74)
This matter arises from the conviction by jury trial of Petitioner Ricardo Enrique Vega ("Petitioner"). Petitioner was convicted of possession with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). See Doc. 51 (Verdict of Jury Trial) at 1; Doc. 64 (Transcript of Day Two of Jury Trial) at 171. The jury also found the allegation that the offense involved five hundred grams or more of a substance containing methamphetamine or fifty or more grams of actual methamphetamine to be true. See Doc. 51 at 2; Doc. 64 at 171-172. Petitioner is currently incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania ("FCI Loretto") and is proceeding in this matter in propria persona. See Doc. 72 (§ 2255 Motion) at 1. On August 12, 2013, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner's motion alleges the following grounds for relief: (1) "the district court erred in finding by a preponderance of the evidence that [P]etitionerwas responsible for more [than] 500 grams [of] methamphetamine" (Doc. 72 at 4); (2) the application of mandatory minimum sentence of 20 years pursuant to 21 U.S.C. § 841(b)(1)(A)(viii) based on Petitioner's prior conviction for possession of a controlled substance did not comply with the procedural requirements of 21 U.S.C. § 851 because the prior conviction was never presented to the jury; (3) ineffective assistance of counsel in failing to move to vacate Petitioner's state predicate offense to prevent an enhancement pursuant to § 851. Petitioner also requests a stay so that he may complete his collateral attack of the predicate offense used to enhance his pursuant to § 851. Petitioner filed a second motion on June 11, 2014 alleging: (1) that the court lacked jurisdiction to hear the case because Petitioner was never properly indicted; and (2) ineffective assistance of counsel at sentencing. For the following reasons, Petitioner's claims will be denied.
Detective Jose Rivera of the Fresno Methamphetamine Task Force received information from a confidential informant that there was an individual, known to the informant as "El Guero" - a man of light complexion - who trafficked in methamphetamine. Detective Rivera made arrangements through the confidential informant to meet "El Guero" and to try to make arrangements for the purchase of methamphetamine.
Detective Rivera met "El Guero" and through investigation discovered that his true name was Ricardo Enrique Vega. In the presence of the confidential informant, he made arrangements with Petitioner to purchase two pounds of crystal methamphetamine. The parties met at a SaveMart store parking lot in Selma and the exchange was consummated. Other law enforcement assisted with aerial and ground surveillance.
Petitioner was arrested at the scene of the buy without incident. The pound of methamphetamine was located under the seat of the vehicle he was driving. He was advised of his Miranda rights at the scene. He subsequently made a statement admitting his involvement in drug trafficking. He further advised law enforcement that there was an additional pound of methamphetamine at his home under a barbecue grill. The officers located the additional pound where Petitioner described.
On August 18, 2009, Petitioner was charged, by way of Complaint, with one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Doc. 1 (Complaint). On August 27, 2009, an indictment and true bill were filed, alleging the same Count as alleged in the Complaint. Doc. 7. On May 5, 2010, the Government filed notice of its intention to offer evidence of Petitioner's prior conviction for possession of a controlled substance, specifically crack cocaine, to seek an enhanced penalty. Doc. 32.
Petitioner was found guilty at a jury trial of the single Count alleged in the indictment and the allegation that Petitioner possessed more than 500 grams of a substance containing methamphetamine was found true. Petitioner was sentenced to imprisonment with the Bureau of Prisons for a term of 240 months based on the mandatory minimum created by 21 U.S.C. §§ 841(b)(1)(A)(viii) and 851.
Petitioner's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating counsel's inability to identify any non-frivolous issues. Appellate Court Docket No. 10-10447, ("App.Ct. Doc.") 4-1 at 32. Petitioner was given the opportunity to file a pro se supplemental or answering brief but failed to do so. Doc. 70 at 2. The United States Court of Appeals for the Ninth Circuit performed an independent review of the record and found no arguable grounds for relief on direct appeal. Doc. 70 at 2. Petitioner's direct appeal was denied on July 2, 2012. Doc. 70. Mandate was issued on July 25, 2012. Doc. 71.
Petitioner now brings the instant motion to vacate.
Title 28 U.S.C. § 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir.2003). Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994), quoting 28 U.S.C. § 2255. The court may deny a hearing if the petitioner's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996), citations omitted. Mere conclusory statements in a Section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980).
Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, when a court receives a section 2255 motion, the court must initially screen it, and dismiss it summarily if it plainly appears that the moving party is not entitled to relief. See United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986). Summary dismissal pursuant to Rule 4 is appropriate only where the allegations of the petitioner are "vague [or] conclusory," "palpably incredible" or "patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
Section 2255 contains a 1-year statute of limitations in which to file a petition to vacate, set aside, or correct. 28 U.S.C. § 2255(f); United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011). The 1-year limitation period runs from the latest of: "(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of [federal law] is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was 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; or (4) the date onwhich the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f).
Petitioner has alleged no impediment to filing his motion, has alleged no newly recognized right, and has not alleged that any facts were recently discovered. The 1-year statute therefore runs from the date of finality of Petitioner's conviction. Petitioner's direct appeal was decided on June 2, 2012. Mandate was issued on June 25, 2012. Petitioner did not file for certiorari. The judgment of conviction therefore became final on Monday, September 24, 2012. One year from that date is September 24, 2013. Petitioner's first motion to vacate, filed August 12, 2013, is timely. Petitioner's second motion, filed June 11, 2014 is untimely.
Untimely federal petitions for writs of habeas corpus are, as a general rule, barred from federal court review. See 28 U.S.C.A. § 2244(d); 28 U.S.C.A. § 2255(f). The fact that the government has not been prejudiced by the prisoner's delay in bringing the federal action is not material. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); United States v. Duffus, 174 F.3d 333, 338 (3d Cir. 1999). However, a petitioner is entitled to equitable tolling if he shows: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. Diguglielmo, 544 U.S.408, 418 (2005)).
To support his request for equitable tolling, Petitioner alleges that the district court failed to amend its judgment, as ordered by the Ninth Circuit, to strike the phrase "and payment" as a...
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