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United States of America v. Patricia Hernandez

August 28, 2012

UNITED STATES OF AMERICA
v.
PATRICIA HERNANDEZ



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

A grand jury indicted Patricia Hernandez with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). After a jury trial, she was convicted and sentenced to 180 months' imprisonment. The Court of Appeals for the Third Circuit affirmed this conviction and sentence on January 11, 2011. See United States v. Hernandez, 412 F. App'x. 509 (3d Cir. 2011). Miss Hernandez has filed a timely pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255, alleging two separate grounds for the improper application of the Armed Career Criminal Act ("the Act") in determining her sentence. For the reasons that follow, I will deny the motion in its entirety without a hearing.

I. BACKGROUND

On April 3, 2008, the Philadelphia Police arrested Miss Hernandez after responding to a report of an individual with a gun at a residence. The police officers arrived to find Miss Hernandez near the doorway of the kitchen. When the police ordered Miss Hernandez to show her hands, she reached into her pocket and tossed a shiny object into a litter box. The object recovered was a handgun which contained no live rounds of ammunition. Having previously been convicted of three separate drug felonies in the Commonwealth of Pennsylvania, Miss Hernandez was indicted by a grand jury with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

II. STANDARD OF REVIEW

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of her sentence. Section 2255 provides, in relevant part, as follows:

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, 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Thus, Miss Hernandez is entitled to relief only if she can demonstrate that she is in custody in violation of federal law or the Constitution. See United States v. Garth, 188 F.3d 99, 108 (3d Cir. 1999) (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)) (federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to review questions of guilt or innocence.) In considering this motion, the court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005).

Miss Hernandez has filed this motion pro se. Pro se pleadings are traditionally construed quite liberally. However, a pro se petitioner is not excused from the duty to prove a "set of facts in support of [her] claim which would entitle [her] to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972). A prisoner in custody may move the sentencing court to "vacate, set aside, or correct" a sentence imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 184 (1979)).

Section 2255 provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). Conversely, a court may dismiss a Section 2255 motion where the records and files show conclusively that the movant is not entitled to relief. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).

III. DISCUSSION

In her petition, Miss Hernandez sets forth two grounds for relief. First, she claims that this court improperly applied the Act in determining her sentence. Second, she contends that "based on Supreme Court Case decisions after my sentencing, two of my State convictions should not have qualified towards [the Act]." Under the Act, "[A] person who violates section 922(g) . . . and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g)."

18 U.S.C. ยง 924(e)(1) (emphasis added). After determining that Miss Hernandez's previous state convictions qualified as serious drug offenses, I sentenced her to fifteen ...


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