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United States v. Rios-Zamora

United States District Court, District of Kansas

October 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS RIOS-ZAMORA, Defendant. Criminal No. 12-20085-CM

MEMORANDUM AND ORDER

CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

This matter is before the court on defendant Jesus Rios-Zamora’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 29). Defendant in this case pleaded guilty to unlawfully re-entering the United States following deportation after an aggravated felony in violation of 8 U.S.C. § 1326(a). At defendant’s sentencing, the court applied a sixteen-level enhancement because defendant’s prior aggravated felony was a crime of violence. Defendant argues that the prior felony upon which the court relied in enhancing his sentence did not qualify as a crime of violence and that, therefore, his counsel provided ineffective assistance.[1] For the reasons stated below, the court denies the motion.

I. Timeliness

The government first contends that defendant’s motion is untimely. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a § 2255 motion must be filed within one year of “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1); see Johnson v. United States, 544 U.S. 295, 299 (2005). A judgment becomes final on the date the Supreme Court affirms a conviction, denies a petition for writ of certiorari, or when the time for filing a petition for writ of certiorari expires. Clay v. United States, 537 U.S. 522, 524–25 (2003).

In this case, defendant initially appealed his conviction, but then he moved to dismiss his appeal. The government contends that defendant’s § 2255 motion should be denied because it was filed more than one year after the Tenth Circuit issued its mandate dismissing defendant’s appeal. Without citation to any authority, the government argues that, because defendant dismissed the appeal on his own motion, “it is illogical to assume defendant’s conviction was not ‘final’ until some later date.” (Doc. 31 at 3.)

While the Tenth Circuit has not spoken to the specific issue of when a conviction becomes final after a defendant voluntarily dismisses an appeal, the court finds persuasive the Seventh Circuit’s opinion in Latham v. United States, 527 F.3d 651 (7th Cir. 2008); see also United States v. Smith, 03-20036-JWL, 2009 WL 2448803, at *1 (D. Kan. Aug. 10, 2009) (citing Latham). In Latham, the court held that a defendant’s federal conviction did not become final under the AEDPA until the time for seeking Supreme Court certiorari expired, despite the voluntary dismissal of the defendant’s appeal. Id. at 652–53. The Seventh Circuit reasoned that, under 28 U.S.C. § 1254, even where a defendant voluntarily dismisses his appeal, he is still “entitled to ask the Supreme Court to review [that] judgment by writ of certiorari[.]” Id. at 653; see also United States v. Parker, 416 F. App’x 132, 132 (3d Cir. 2011) (citing Latham and agreeing with government’s concession that “there is no known precedent for the proposition that a criminal defendant who seeks voluntary dismissal of an appeal is foreclosed from filing a petition for certiorari challenging the dismissal.”).

In this case, the Tenth Circuit issued its mandate on February 5, 2013, dismissing the appeal on defendant’s own motion. However, the one-year clock did not start ticking at the issuance of the mandate; rather, the one-year clock began ticking when the time expired for defendant to file a petition for certiorari, or May 6, 2013. See Latham, 527 F.3d at 653. Defendant filed the instant motion on February 18, 2014, which falls within the one-year deadline for filing. Defendant’s § 2255 motion is timely filed.

II. Waiver of Collateral Attack

While defendant presents his argument in terms of ineffective assistance of counsel, it appears that defendant is actually complaining about the sentence he received. Specifically, defendant contends that the underlying felony upon which the court relied in enhancing his sentence did not qualify as a predicate offense. The court believes defendant has waived this claim pursuant to the terms of his plea agreement.

In this case, defendant signed a plea agreement that contains a waiver of appeal and collateral attack of his sentence. (Doc. 12 at 7–8.) In general, a court will hold a defendant to the terms of a lawful plea agreement. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1207 (10th Cir. 2004); United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). A knowing and voluntary waiver of 28 U.S.C. § 2255 rights is enforceable. United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). The court applies a three-pronged analysis to evaluate the enforceability of such a waiver, in which the court must determine: (1) whether the scope of the waiver covers the disputed issue; (2) whether the defendant knowingly and voluntarily waived his rights; and (3) whether enforcement of the waiver would result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).

A. Scope of Waiver

In determining whether a disputed issue is within the scope of the waiver, courts look to the plain language of the plea agreement. United States v. Anderson, 374 F.3d 955, 957–58 (10th Cir. 2004). The court strictly construes the waiver and resolves any ambiguities against the government. Hahn, 359 F.3d at 1343. Defendant’s plea agreement at paragraph 12 states:

The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, the defendant’s conviction, or the components of the sentence to be imposed herein (including the length and conditions of supervised release). The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or otherwise attempt to modify or change his sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)], a motion brought under Title 18, U.S.C. § 3582(c) and a motion brought under Fed. Rule of Civ. Pro 60(b) [sic]. In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court.

(Doc. 12 at 7–8.) In addition, defendant confirmed at the plea hearing that he understood he was waiving any right to appeal or collaterally attack ...


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