United States District Court, M.D. Pennsylvania
the Court is Petitioner Alberto Bautista-Sanchez's motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. (Doc. No. 41-1.) For the reasons provided
herein, the Court will deny Petitioner's Section 2255
January 8, 2014, a one-count indictment was returned charging
Petitioner Alberto Bautista-Sanchez with illegal re-entry
after an aggravated felony conviction in violation of 8
U.S.C. §§ 1326 (a), (b)(1), and (b)(2). On March
19, 2014, Petitioner pled guilty to count one of the
indictment pursuant to a written plea agreement. The Court
sentenced Petitioner on July 23, 2014 to 41 months'
imprisonment, a three- year term of supervised release, and a
$100.00 special assessment. (Doc. No. 33.)
6, 2016, Petitioner filed the instant motion to vacate under
28 U.S.C. § 2255, asserting a potential entitlement to
relief under Johnson v. United States, 135 S.Ct.
2251 (2015), which invalidated the residual clause of the
Armed Career Criminal Act (“ACCA”), and its
definition of a “violent felony.” (Doc. No. 39.)
Shortly thereafter, Petitioner filed both a brief in support
of (Doc. No. 41), and a supplement to (Doc. No. 42), his
Section 2255 motion. Pursuant to Standing Order 15-6 of the
United States District Court for the Middle District of
Pennsylvania regarding Appointment of Counsel in Proceedings
Relating to the Application of Johnson v. United
States, Attorney Melinda Ghilardi of the Federal Public
Defender's Office was appointed to represent Petitioner.
(Doc. No. 40.) Following her review of Petitioner's
motion, on July 1, 2016, Attorney Ghilardi filed a motion to
withdraw as counsel on the basis that Johnson's
holding invalidating the residual clause of the ACCA and its
definition of a “violent felony, ” is
inapplicable to Petitioner's case, as Petitioner pled
guilty to illegal re-entry following the conviction of an
aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(A),
which defines aggravated felony as “murder, rape, or
sexual abuse of a minor.” (Doc. No. 43.) On July 12,
2016, the Court granted Attorney Ghilardi's motion to
withdraw. (Doc. No. 43.) On October 7, 2016, the Government
filed its brief in opposition to Petitioner's pro
se Section 2255 motion. (Doc. No. 48.) Accordingly, this
matter is now ripe for disposition.
28 U.S.C. § 2255(a), a federal prisoner may file a
motion requesting that the sentencing court vacate, set
aside, or correct his sentence on the basis “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.” However,
Section 2255 does not afford a remedy for all errors that may
have been made at trial or during sentencing. United
States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993)
(citing United States v. Addonizio, 442 U.S. 178,
185 (1979)). Rather, Section 2255 is implicated only when the
alleged error raises “a fundamental defect which
inherently results in a complete miscarriage of
justice.” Addonizio, 442 U.S. at 185. Under
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a petitioner has one year from the
time his conviction becomes final to file a Section 2255
motion. 28 U.S.C. § 2244.
Timeliness of Petitioner's Section 2255 motion
U.S.C. § 2255 provides a one-year period to file an
initial motion to vacate that runs from “the date on
which the judgment of conviction becomes final.”
United States v. Davies, 394 F.3d 182, 186 n. 2 (3d
Cir. 2005). In this context, a judgment of conviction becomes
final within the meaning of § 2255 on the date on which
the time for filing a timely direct appeal expires.
Kapral v. United States, 166 F.3d 565, 577 (3d
Cir.1999). Because Petitioner did not pursue a timely direct
appeal to the United States Court of Appeals for the Third
Circuit, his conviction and sentence became final on August
6, 2014-fourteen days from the entry of the judgment of
conviction on July 23, 2014. See Fed. R. App. P.
4(b)(1)(A)(i). Consequently, Petitioner was required to file
the instant Section 2255 motion no later than August 6, 2015,
in order to be considered timely. Thus, Petitioner's
instant Section 2255 motion, filed on June 6, 2016, is
facially untimely absent an applicable exception to the
AEDPA's one-year statute of limitations.
one such exception to the general one-year statute of
limitations bar is found in 28 U.S.C. § 2255(f)(3),
which permits a defendant to lodge a collateral attack of his
sentence within one year from “the date on which the
right asserted was initially recognized by the Supreme Court
[of the United States], if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3); see also Dodd v. United States,
545 U.S. 353, 357-58 (2005) (noting that the Section
2255(f)(3) limitation period runs from the date the Supreme
Court recognizes the new right, not the date the new right is
Petitioner asserts that his Section 2255 motion is timely
under 28 U.S.C. § 2255(f)(3), because he filed the
motion within one year of the Supreme Court's decision in
Johnson. (Doc. No. 41 at 2.) From what can be
gleaned from Petitioner's Section 2255 motion, it appears
that Petitioner claims that his aggravated felony
convictions, which serve as prerequisites to the imposition
of an enhanced sentence for an illegal re-entry offense, are
affected by Johnson, thereby qualifying him for a
reduction of his sentence on void-for-vagueness grounds.
(Doc. Nos. 41, 42.) The Court finds this argument unavailing.
As Respondent has correctly identified, Johnson is
wholly inapplicable to Petitioner's case. (Doc. No. 48.)
Petitioner received an 8-level upward enhancement as
recommended by U.S.S.G. § 2L1.2(b)(1)(C), due to prior
convictions of aggravated felony offenses under 8 U.S.C.
§ 1101(a)(43)(A), for “sexual abuse of a minor,
” resulting in his eventual deportation. Simply stated,
Johnson, which invalidated the residual clause of
the ACCA, has no effect on what constitutes “sexual
abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A).
Accordingly, as Johnson bears no impact on the
validity of Petitioner's sentence, Petitioner's
Section 2255 motion must be denied as time-barred.
2255(b) advises that a petitioner may be entitled to a
hearing on his motion. The decision to hold a hearing is
wholly within the discretion of the district court.
Gov't of Virgin Islands v. Forte, 865 F.2d 59,
62 (3d Cir. 1989). Where the record affirmatively indicates
that a petitioner's claim for relief is without merit,
the claim may be decided on the record without a hearing.
See Gov't of Virgin Islands v. Nicholas, 759
F.2d 1073, 1075 (3d Cir. 1985). Here, as discussed above, the
Court finds that “the motion and files and records of
this case show conclusively that the movant is not entitled