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Palacios-Castro v. (2255 - 1:03-cr-5456 REC) Doc.

Case 1:05-cv-01573-REC Document 2 Filed 12/16/2005 Page 1 of 4

6 IN THE UNITED STATES DISTRICT COURT FOR THE

7 EASTERN DISTRICT OF CALIFORNIA

9 EDUARDO PALACIOS-CASTRO, ) No. CV-F-05-1573 REC


) (No. CR-F-03-5456 REC)
10 )
) ORDER DENYING PETITIONER’S
11 Petitioner, ) MOTION TO VACATE, SET ASIDE
) OR CORRECT SENTENCE PURSUANT
12 vs. ) TO 28 U.S.C. § 2255 AND
) DIRECTING ENTRY OF JUDGMENT
13 ) FOR RESPONDENT
UNITED STATES OF AMERICA, )
14 )
)
15 Respondent. )
)
16 )

17 On December 12, 2005, petitioner Eduardo Palacios-Castro

18 filed a motion to vacate, set aside or correct sentence pursuant

19 to 28 U.S.C. § 2255.

20 Petitioner was charged with being a deported alien found in

21 the United States in violation of 8 U.S.C. § 1326. Petitioner,

22 who was represented by counsel, pleaded guilty pursuant to a

23 written Plea Agreement on January 26, 2004. Pursuant to the

24 terms of the Plea Agreement, petitioner waived his right to

25 appeal his conviction and sentence “on any ground and any appeal

26 right conferred by 18 U.S.C. § 3742" and agreed “not to contest

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Case 1:05-cv-01573-REC Document 2 Filed 12/16/2005 Page 2 of 4

1 his sentence in any post-conviction proceeding, including, but

2 not limited to, any proceeding under 28 U.S.C. § 2255".

3 Petitioner was sentenced on January 26, 2004 to 51 months

4 incarceration. Petitioner did not file a Notice of Appeal.

5 Petitioner is not entitled to relief pursuant to Section

6 2255 on several grounds.

7 As noted, petitioner waived his right to file a Section 2255

8 motion in the Plea Agreement.

9 Section 2255 provides that a one-year period of limitation

10 applies to a Section 2255 motion, which limitation period runs

11 from the latest of:

12 (1) the date on which the judgment of


conviction became final;
13
(2) the date on which the impediment to
14 making a motion created by governmental
action in violation of the Constitution or
15 laws of the United States is removed, if the
movant was prevented from making a motion by
16 such governmental action;

17 (3) the date on which the right asserted was


initially recognized by the Supreme Court, if
18 that right has been newly recognized by the
Supreme Court and made retroactively
19 applicable to cases on collateral review; or

20 (4) the date on which the facts supporting


the claim or claims presented could have been
21 discovered through the exercise of due
diligence.
22
Here, it appears that petitioner’s motion is barred by the one-
23
year limitations period. In Calderon v. U.S. Dist. Court for
24
Central Dist. of Cal., 128 F.3d 1283 (9th Cir. 1997), cert.
25
denied, 522 U.S. 1099 and 523 U.S. 1061 (1998), overruled on
26

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Case 1:05-cv-01573-REC Document 2 Filed 12/16/2005 Page 3 of 4

1 other grounds, 163 F.3d 530 (9th Cir. 1998), the Ninth Circuit

2 held that the one-year limitations period applicable to Section

3 2255 motions is subject to equitable tolling. However, the Ninth

4 Circuit further held:

5 Equitable tolling will not be available in


most cases, as extensions of time will only
6 be granted if ‘extraordinary circumstances’
beyond a petitioner’s control make it
7 impossible to file a petition on time ... We
have no doubt that district judges will take
8 seriously Congress’s desire to accelerate the
federal habeas process, and will only
9 authorize extensions when this high hurdle is
surmounted.
10
Id. at 1288-1289. Petitioner makes no showing that he is
11
entitled to equitable tolling.
12
As a general rule, the court allows a petitioner to file an
13
amended motion setting forth the date on which the petitioner
14
contends his claim for relief accrued and/or setting forth the
15
facts upon which the petitioner bases a claim of equitable
16
tolling. The court will not do so here because petitioner is not
17
entitled to relief in any event.
18
Petitioner’s claims for relief are based on his contentions
19
that 8 U.S.C. § 1326 is unconstitutional and his sentence is
20
unconstitutional since the Supreme Court’s decisions in Blakely
21
v. Washington, ___ 124 S.Ct. 466 (2004) and United States v.
22
Booker, ___ 125 S.Ct. 738 (2005). However, neither Blakey nor
23
Booker are retroactively applicable to cases on collateral
24
review. Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005);
25
United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005).
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Case 1:05-cv-01573-REC Document 2 Filed 12/16/2005 Page 4 of 4

1 Furthermore, petitioner’s contention that the felony and

2 aggravated felony provisions of Section 1326 are unconstitutional

3 on their face is without merit. Petitioner’s claim is based on

4 the premise that Almendarez-Torres v. United States, 523 U.S. 224

5 (1998) has been or will be overruled. However, this claim is

6 precluded by the law of the Ninth Circuit. See United States v.

7 Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005)(“Although

8 recent Supreme Court jurisprudence has perhaps called into

9 question the continuing viability of Almendarez-Torres ..., we

10 are bound to follow a controlling Supreme Court precedent until

11 it is explicitly overruled by that Court.”).

12 ACCORDINGLY:

13 1. Petitioner Eduardo Palacios-Castro’s motion to vacate,

14 set aside or correct sentence pursuant to 28 U.S.C. § 2255 is

15 denied.

16 2. The Clerk is directed to enter judgment for respondent.

17 IT IS SO ORDERED.

18 Dated: December 14, 2005 /s/ Robert E. Coyle


668554 UNITED STATES DISTRICT JUDGE
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