Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, v. Daniel Gutierrez-Farias, Defendant/Movant.

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No. CR 04-542-PHX-SMM No. CV 05-2199-PHX-SMM (VAM) ORDER

Movant Daniel Gutierrez-Farias, presently confined in the California City Correctional Center in California City, California, has filed a pro se "Motion for a Time Reduction of Sentence Pursuant to 28 U.S.C. Section 2255" (Dkt. #19). The Court will deny the motion without prejudice to filing a request for authorization from the United States Court of Appeals for the Ninth Circuit. A. Background Movant pled guilty to illegal re-entry after removal, a violation of 8 U.S.C. § 1326. On August 23, 2004, he was sentenced to a term of thirty months, to be followed by two years of supervised release. He did not appeal. Movant previously filed an action pursuant to 28 U.S.C. § 2255, claiming that (1) his sentence was enhanced by "judge-found" facts in violation of the Sixth Amendment; (2) his trial counsel was ineffective by failing to raise an argument based on Blakely v. Washington, 124 S. Ct. 2531 (2004); and (3) the sentence imposed was greater than that specified in the

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applicable guidelines range. By Order filed March 14, 2005 (Dkt. #17), the Court summarily dismissed his action pursuant to Rule 4 of the Rules Governing § 2255 Proceedings. In the present action, Movant requests a downward departure pursuant to U.S.S.G. § 5K2.0 on the basis that he is willing to concede to his removal from the United States. He believes he is entitled to a downward departure of two to four levels, which would correspond to a reduction of sentence between six to twelve months. He also seems to claim that his sentence somehow violates equal protection. (Mot. at 2.) B. Analysis Petitioner requests that his sentence be reduced. A judgment of conviction that includes a sentence is a final judgment except in extremely limited circumstances. 18 U.S.C. § 3582(b). With few narrow exceptions, a court generally may not modify a sentence once it has been imposed. 18 U.S.C. § 3582(c); United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). A term of imprisonment may be reduced upon motion by the Director of the Bureau of Prisons and upon the court's consideration of the factors set forth in 18 U.S.C. § 3553, a finding of extraordinary and compelling reasons, and a finding that a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1). Movant cannot meet this standard because there has been no motion by the Director. A sentence may also be modified to the extent permitted by Rule 35 of the Rules of Criminal Procedure. 18 U.S.C. § 3582(b)(2), (c)(1)(B). This rule is very narrowly read and is not meant to permit a court to simply change its mind about the appropriateness of a sentence. Penna, 319 F.3d at 512 & n.3. Rule 35(a) provides that a court may correct a sentence that resulted from arithmetical, technical, or other clear error within 7 days after sentencing. If the sentence is not corrected within 7 days, the district court loses jurisdiction. Penna, 319 F.3d at 512. More than 7 days have elapsed in the instant case from the date of sentencing, so the Court lacks jurisdiction here, even if Movant had presented one of the grounds in Rule 35(a).
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The Court may also reduce a sentence for substantial assistance, upon motion of the government. FED. R. CRIM. P. 35(b). This ground also does not apply to Movant's circumstances because there has not been any motion by the government for a reduction. Otherwise, the Court possesses jurisdiction pursuant to 28 U.S.C. § 2255 to correct a sentence by a prisoner "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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255. To the extent that Petitioner seeks to avail himself of this provision, his action falls under the second and successive provision of § 2255. A habeas petition is "second or successive" if it raises claims that were or could have been adjudicated on their merits in an earlier petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam), cert. denied, 538 U.S. 984 (2003). There is no reason that Petitioner could not have raised his claims in his earlier § 2255 motion so the present motion is "second or successive." "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals ..." 28 U.S.C. § 2255; see also Rule 9, Rules Governing § 2255 Proceedings (party must obtain authorization order before presenting a second or successive motion). The pending pleading has not been certified by the United States Court of Appeals for the Ninth Circuit. Accordingly, the Court will deny the present Motion without prejudice to allow Movant to obtain proper certification from the Ninth Circuit. The Court will also direct the Clerk of Court to provide Movant a form for filing an Application for Leave to File Second or Successive Petition or Motion Under 28 U.S.C. § 2254 or § 2255. IT IS THEREFORE ORDERED: (1) That the "Motion for a Time Reduction of Sentence Pursuant to 28 U.S.C.

Section 2255" (Dkt. #19) is denied without prejudice to allow Movant to obtain proper certification from the United States Court of Appeals for the Ninth Circuit;
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(2) That the Clerk of Court shall terminate civil action number CV 05-2199-PHXSMM (VAM) and enter judgment accordingly; (3) That the Clerk of Court shall provide Movant a form for filing an Application for Leave to File Second or Successive Petition or Motion Under 28 U.S.C. § 2254 or § 2255.

DATED this 6th day of September, 2005.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPLICATION FOR LEAVE TO FILE SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2254 OR § 2255
Docket Number ____________________ (to be provided by court)

Petitioner's name ___________________________________ Prisoner registration number _______________________ Address _________________________ _________________________ _________________________ _________________________

Instructions - Read Carefully 1. This application, whether handwritten or typewritten, must be legible and signed by the petitioner under penalty of perjury. An original and five (5) copies must be provided to the Clerk. The application must comply with 9th Circuit Rule 22-3, which is attached to this form. All questions must be answered concisely and in relationship to the questioned asked on this form. The petitioner shall serve a copy of this application and any attachments on respondent and must complete and file a proof of service with this application.

2.

3.

The petitioner shall attach to this application copies of the magistrate judge's report and recommendation and the district court's opinion in any prior federal habeas proceeding under 28 U.S.C. § 2254 or § 2255 or state why such documents are unavailable to petitioner. _______________
This form has not been officially adopted by the Ninth Circuit Court of Appeals, but prisoners are encouraged to use this form to comply with Ninth Circuit Rule 22-3 pending the completion of official rule-making procedures. Questions should be directed to the Office of Staff Attorneys, Motions/Pro Se Unit, (415) 556-9890 Case 2:04-cr-00542-SMM Document 21 Filed 09/07/2005 Page 5 of 10

4.

You Must Answer the Following Questions: 1. What conviction(s) are you challenging? _____________________________________________________________ _____________________________________________________________ In what court(s) were you convicted of these crime(s)? _____________________________________________________________ _____________________________________________________________ What was the date of each of your conviction(s) and what is the length of each sentence? _____________________________________________________________ _____________________________________________________________

2.

3.

For questions (4) through (9), provide information separately for each of your previous section 2254 or 2255 proceedings. Use additional pages if necessary. 4. With respect to each conviction and sentence, have you ever filed a petition or motion for habeas corpus relief in federal court under 28 U.S.C. § 2254 or No G § 2255? Yes G (a) In which federal district court did you file a petition or motion? _______________________________________________________ (b) What was the docket number? ________________________________ (c) On what date did you file the petition/motion? ___________________

5.

6.

What grounds were raised in your previous habeas proceeding? (list all grounds and issues previously raised in that petition/motion) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ Did the district court hold an evidentiary hearing? Yes G No G 2
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7.

How did the district court rule on your petition/motion? a. District court dismissed petition/motion, if yes, on what grounds? __________________________________ District court denied petition/motion; District court granted relief; if yes, on what claims and what was the relief? _______________________________________________________

G G

(attach copies of all reports and orders issued by the district court)

8.

On what date did the district court decide your petition/motion? _____________________________________________________________ Yes G No G

9.

Did you file an appeal from that disposition?

(a) What was the docket number of your appeal? ____________________ (b) How did the court of appeals decide your appeal? ________________

10.

11.

State concisely each and every ground or issue you wish to raise in your current petition or motion for habeas relief. Summarize briefly the facts supporting each ground or issue. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ For each ground raised, was it raised in the state courts? If so, what did the state courts rule and when? 3
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_____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

12.

For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list each ground separately) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

13.

For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each ground separately and give case name and citation for each new rule of law) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

14.

For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence? Why has this newly discovered evidence not been previously available to you? (list each ground separately) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

15.

For each ground/issue raised, does the newly discovered evidence establish your innocence? How? 4
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revised 2/02

_____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

16.

For each ground/issue raised, does the newly discovered evidence establish a federal constitutional error? Which provision of the Constitution was violated and how? _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

17.

Provide any other basis for your motion not previously stated. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________

Signature:

_________________________ Date: _______________

Proof of Service on Respondent MUST be Attached.

revised 2/02
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 95 Seventh Street San Francisco, CA 94103 NINTH CIRCUIT RULE 22-3
(a) Applications. Any petitioner seeking leave to file a second or successive 2254 petition or 2255 motion in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. §§ 2244 or 2255. An original and five copies of the application must be filed with the Clerk of the Court of Appeals. No filing fee is required. If a second or successive petition or motion, or an application for leave to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. The application must: (1) include a copy of the second or successive 2254 petition or 2255 motion which the applicant seeks to file in the district court; and (2) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and (3) state how the requirements of sections 2244(b) or 2255 have been satisfied. (b) Excerpts of Record. If reasonably available to the petitioner, the application must include copies of all relevant state court orders and decisions and all dispositive district court orders in prior federal proceedings. If excerpts of record filed by petitioner are incomplete, respondent may file a supplemental excerpt of record. (c) Service. The petitioner must serve a copy of the application and all attachments on the respondent, and must attach a certificate of service to the application filed with the court. (d) Response. In noncapital cases, no response is required unless ordered by the court. In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental excerpts as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental excerpts within ten days of the date the application is served. (e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the court will grant or deny the application, and state its reasons therefore, as soon as practicable. (f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel as soon as practicable. If the court grants leave to file a second or successive application, the court shall stay petitioner's execution pending disposition of the second or successive petition by the district court. Case 2:04-cr-00542-SMM Document 21 Filed 09/07/2005 Page 10 of 10