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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 EPIFANIO SANCHEZ ALFARO,

13 Petitioner, NO. CR. 03-401 WBS KJM 14 v. CV. 05-2435 WBS 15 JOSEPH WOODRING, Warden, ORDER 16 Respondent. / 17 18 ----oo0oo---- 19 Petitioner Epifanio Sanchez Alfaro, a federal prisoner 20 proceeding pro se, moves to vacate, set aside, or correct his 21 sentence pursuant to 28 U.S.C. § 2255.1 Petitioner had pled 22 23 1 Petitioner originally filed his motion pursuant to 28 24 U.S.C. § 2241 in the District Court for the Central District of California on September 30, 2005. Subsequently, that court 25 properly construed the motion as one made pursuant to 28 U.S.C. § 2255 and transferred it to this court. See Hernandez v. 26 Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam) (“[M]otions to contest the legality of a sentence must be filed 27 under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence’s 28 execution must be brought pursuant to § 2241 in the custodial

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1 guilty to one count of distribution of methamphetamine in 2 violation of 21 U.S.C. § 841(a)(1) pursuant to a agreement. 3 In support of his motion, petitioner argues that (1) his drug 4 sale did not fall within the federal definition of a “drug 5 trafficking crime,” (2) his offense was not a crime of violence 6 and therefore should not have been considered an aggravated 7 felony, (3) the statute under which he was convicted was 8 unconstitutional, and (4) his trial attorney rendered ineffective 9 assistance of counsel. (See Docket No. 88 (“Petition”) at 3-4.) 10 Motions pursuant to § 2255 must be filed within one 11 year of the later of (1) the date on which the judgment of 12 conviction became final, (2) the date on which an impediment to 13 filing created by governmental action is removed, (3) the date on 14 which a constitutional right is newly recognized and made 15 retroactive on collateral review, or (4) the date on which the 16 factual predicate of the claim could have been discovered through 17 the exercise of due diligence. See 28 U.S.C. § 2255(f)(1)-(4). 18 Here, petitioner does not allege any impediment to filing created 19 by governmental action, nor does he contend that the 20 constitutional rights upon which his claims are based are newly 21 recognized. He also does not allege that the factual predicate 22 of his claims could not have been discovered through the exercise 23 of due diligence. Therefore, the for 24 filing his § 2255 motion was one year from the date that his 25 judgment of conviction became final. 26 Guided by the Supreme Court’s definition of finality in 27

28 court.”).

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1 Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987), the Ninth 2 Circuit has held that, for purposes of motions filed under § 3 2255, finality is determined under the definition set forth in 28 4 U.S.C. § 2244(d)(1). United States v. Schwartz, 274 F.3d 1220, 5 1223 (9th Cir. 2001). Thus, the one-year statute of limitations 6 for a § 2255 motion begins to run “upon the expiration of the 7 time during which [petitioner] could have sought review by direct 8 appeal.” Id. (citing United States v. Garcia, 210 F.3d 1058, 9 1060 (9th Cir. 2000)). In turn, Federal Rule of Appellate 10 Procedure 4 provides that a criminal defendant’s notice of direct 11 appeal must be filed in the district court within ten days of the 12 entry of judgment. See Fed. R. App. P. 4(b)(1)(A). 13 Petitioner’s judgment of conviction was entered on 14 August 5, 2004. (Docket No. 59.) Petitioner did not file a 15 notice of appeal, and thus his judgment of conviction became 16 final on August 15, 2004. See Fed. R. App. P. 26(a) (computing 17 time). A timely motion pursuant to § 2255, therefore, was due no 18 later than August 15, 2005. See Fed. R. Civ. P. 6(a); Patterson 19 v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Rule 20 6(a)’s “anniversary method” to statutes of limitation under the 21 Antiterrorism and Effective Death Penalty Act (“AEDPA”)). 22 Petitioner filed his motion on September 30, 2005, after that 23 deadline had expired. (See Petition at 1.) 24 Although petitioner’s motion is untimely, the one-year 25 statute of limitations under § 2255 may be subject to equitable 26 tolling. See United States v. Battles, 362 F.3d 1195, 1196-97 27 (9th Cir. 2004). “To receive equitable tolling, a petitioner 28 bears the burden of showing ‘(1) that he has been pursuing his

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1 rights diligently, and (2) that some extraordinary circumstance 2 stood in his way.’” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 3 1011 (9th Cir. 2009) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 4 418 (2005)). “To apply the doctrine in ‘extraordinary 5 circumstances’ necessarily suggests the doctrine’s rarity, and 6 the requirement that extraordinary circumstances ‘stood in his 7 way’ suggests that an external force must cause the untimeliness, 8 rather than, as we have said, merely ‘oversight, miscalculation 9 or negligence on [the petitioner’s] part, all of which would 10 preclude the application of equitable tolling.’” Id. (quoting 11 Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)) 12 (alteration in original). Here, petitioner has not provided any 13 explanation for the untimely filing of his motion, let alone any 14 “extraordinary circumstance” that “stood in his way.” 15 Petitioner seeks to overcome AEDPA’s statute of 16 limitations by claiming “actual innocence.”2 On that claim, he 17 has failed to satisfy the “exacting gateway standard established 18 by the Supreme Court in [Schlup v. Delo, 513 U.S. 298 (1995)].” 19 Majoy v. Roe, 296 F.3d 770, 775 (9th Cir. 2002). In order to 20 pass through “Schlup’s gateway,” a petitioner “must show that, in 21 light of all the , including evidence not introduced at 22 trial, ‘it is more likely than not that no reasonable juror would 23

24 2 In an unpublished decision filed on September 2, 2008, the Ninth Circuit noted that “[a]lthough a credible claim of 25 actual innocence will excuse a habeas petitioner’s procedural default, neither the Supreme Court nor [the Ninth Circuit] has 26 held that a credible claim of actual innocence will toll the one-year statute of limitations” of AEDPA. Hartawan v. Gordon, 27 265 Fed. App’x 666, 667 (9th Cir. 2008) (citing Schlup v. Delo, 513 U.S. 298, 314-15 (1995); Majoy v. Roe, 296 F.3d 770, 776 (9th 28 Cir. 2002)).

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1 have found petitioner guilty beyond a reasonable doubt.’” Id. at 2 775-76 (quoting Schlup, 513 U.S. at 327.) 3 “A petitioner does not meet the threshold requirement 4 unless he persuades the district court that, in light of the new 5 evidence, no juror, acting reasonably, would have voted to find 6 him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329. 7 Here, petitioner presents no new reliable evidence other than his 8 own assertions, which are contrary to admissions he made in his 9 plea agreement and at his change-of-plea colloquy.3 See id. at 10 324 (“To be credible, such a claim [of actual innocence] requires 11 petitioner to support his allegations . . . with new reliable 12 evidence--whether it be exculpatory scientific evidence, 13 trustworthy eyewitness accounts, or critical physical evidence . 14 . . . Because such evidence is obviously unavailable in the vast 15 majority of cases, claims of actual innocence are rarely 16 successful.” (emphasis added)); Blackledge v. Allison, 431 U.S. 17 63, 74 (1977) (“Solemn declarations in open court carry a strong 18 presumption of verity. The subsequent presentation of conclusory 19 allegations unsupported by specifics is subject to summary 20 dismissal . . . .”). 21 In addition, petitioner has presented no evidence that 22 he is “actually innocent” of the three other felony drug crimes 23 3 Although official transcripts of the change-of-plea and 24 sentencing hearings have not been ordered, the court has reviewed the court reporter’s unofficial record of the proceedings to 25 confirm the accuracy of the information provided in this Order. Cf. United States v. Godinez, No. 06-321, 2008 WL 220114, at *1 26 n.2 (E.D. Cal. Jan. 25, 2008) (Garcia, J.) (referring to “written notes of the [Rule 11] proceedings” in order to conclude that a 27 criminal defendant had voluntarily waived his right to appeal) (citing Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 28 1978)).

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1 alleged in the superceding that the Government 2 dismissed pursuant to the plea agreement. See Bousley v. United 3 States, 523 U.S. 614, 624 (1998) (“In cases where the Government 4 has forgone more serious charges in the course of plea 5 bargaining, petitioner’s showing of actual innocence must also 6 extend to those charges.”). Accordingly, having found no 7 applicable exception to AEDPA’s one-year statute of limitations 8 in this case, the court must deny petitioner’s motion. 9 Even if petitioner’s motion were timely, the court also 10 observes that, in petitioner’s plea agreement, he “specifically 11 agree[d] not to file a motion under 28 U.S.C. § 2255 or § 2241 12 attacking his conviction or sentence.” (Docket No. 39 (“Plea 13 Agreement”) at 8.) A knowing and voluntary waiver of a statutory 14 right is enforceable, United States v. Navarro-Botello, 912 F.3d 15 318, 321 (9th Cir. 1990), and the right to request collateral 16 review under 28 U.S.C. § 2255 is a statutory right that can be 17 waived, United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 18 1993) (finding a plea agreement, in which defendant waived the 19 right to appeal, precluded a collateral attack based on newly 20 discovered evidence). 21 The scope of a waiver of collateral attack may be 22 subject to potential limitations. For example, a defendant’s 23 waiver will not bar collateral proceedings if the trial court did 24 not satisfy certain requirements under Federal Rule of Criminal 25 Procedure 11 to ensure that the waiver was knowingly and 26 voluntary. Navarro-Botello, 912 F.2d at 321. Such a waiver 27 might also be ineffective where the sentence imposed was not in 28 accordance with the negotiated agreement, or if the sentence

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1 imposed was contrary to law. United States v. Littlefield, 105 2 F.3d 527, 528 (9th Cir. 1996). In addition, a waiver may be 3 “unenforceable” and may not “categorically foreclose” a defendant 4 from bringing a collateral attack where a petitioner claims 5 ineffective assistance of counsel affecting the voluntariness of 6 the waiver. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 7 2005); Abarca, 985 F.2d at 1014; see also United States v. 8 Pruitt, 32 F.3d 431, 433 (9th Cir. 1992). 9 Here, the record demonstrates that petitioner’s waiver 10 was knowing and voluntary and that the court complied with Rule 11 11’s requirements. The plea agreement, which petitioner signed 12 on May 12, 2004, provides: 13 I have read this plea agreement and I have carefully reviewed every part of it with my attorney. I understand 14 it, and I voluntarily agree to it. Further, I have consulted with my attorney and fully understand my rights 15 with respect to the provisions of the Sentencing Guidelines which may apply to my case. No other promises 16 or inducements have been made to me, other than those contained in this Agreement. In addition, no one has 17 threatened or forced me in any way to enter into this Plea Agreement. Finally, I am satisfied with the 18 representation of my attorney in this case. 19 (Plea Agreement 10.) On May 13, 2008, the court presided over 20 petitioner’s change-of-plea hearing and conducted a full Rule 11 21 colloquy. (See Docket No. 41.) As part of this colloquy, 22 petitioner stated that he understood the charges against him and 23 knew his maximum possible sentence; petitioner also confirmed 24 that he received and read the plea agreement, understood it, and 25 knew that he was waiving his right to appeal and collaterally 26 attack his conviction and sentence. 27 Furthermore, petitioner’s 60-month sentence was in 28 accordance with the plea agreement and was not contrary to law.

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1 In the plea agreement, the government agreed to dismiss all 2 counts in the superceding indictment except for Count 4 alleging 3 distribution of at least 50 grams of methamphetamine in violation 4 of 21 U.S.C. § 841(a)(1). (See Plea Agreement 5:12-15.) The 5 government also agreed to recommend that petitioner’s sentence of 6 imprisonment be reduced “by 50 [percent] of the bottom of the 7 applicable guideline range” pursuant to U.S. Sentencing 8 Guidelines § 5K1.1. (Id. at 5:17-28.) The government fulfilled 9 these obligations, and petitioner received a sentence of 60 10 months, which was half of the mandatory minimum sentence for the 11 charge alleged. See 21 U.S.C. § 841(b)(viii); (Docket Nos. 58- 12 59). In addition, before imposing the sentence, the court 13 considered all of the appropriate sentencing factors pursuant to 14 18 U.S.C. § 3553. 15 Finally, although petitioner alleges that his trial 16 attorney provided ineffective assistance of counsel, petitioner 17 does not present allegations that call into question the 18 voluntariness of his waiver. See Lampert, 422 F.3d at 871. 19 Rather, petitioner asserts that his attorney’s “loyalty was 20 massively d[i]vided” because counsel “was . . . an officer of the 21 Court, and as such, an ‘Officer of the State.’” (Petition Mem. 22 at 10.) Petitioner continues, “Attorneys (lawyers) are officers 23 of the court who swear an ‘Oath Admission’ to the (ABA) which 24 swears to devote their undivided loyalties to the court and none 25 other. Which creates a conflict of interest when they agree to 26 represent an Accused.” (Id. at 16-17.) Petitioner’s claims are 27 without merit. 28 Accordingly, because petitioner’s motion is not only

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1 barred by the statute of limitations, but also precluded by his 2 plea agreement in this case, the court must deny his motion. 3 IT IS THEREFORE ORDERED that petitioner’s motion to 4 vacate, set aside, or correct his sentence be, and the same 5 hereby is, DENIED. 6 DATED: April 29, 2009 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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