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United States v. Barboza-Lozano

United States District Court, D. Arizona

November 1, 2019

United States of America, Plaintiff/Respondent,
Damiana Barboza-Lozano, Defendant/Movant.




         On November 1, 2018, [1] Damiana Barboza-Lozano (“Movant”) filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (hereinafter “Motion”) asserting two claims for relief. (Doc. 1)[2] When she filed the Motion, Movant was detained at the Adelanto ICE Detention Center in Adelanto, California (Doc. 1 at 1), and subsequently was removed to Mexico from the United States in December 2018. (Doc. 13 at 1) With the Motion, Movant filed a notice of the motion with her affidavit in support as well as a memorandum of law in support of the Motion. (Doc. 2) Respondent filed its response in April 2019. (Doc. 16) Movant did not file a reply. Because the Motion is untimely without excuse, undersigned recommends that the Court dismiss the Motion with prejudice.


         Together with her co-defendant, Movant was indicted and charged on August 2, 2016, in the District of Arizona on a count of possession with intent to distribute methamphetamine, and a count of possessing with intent to distribute cocaine, each in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C). (CR Doc. 18 at 1-2) Movant was born and raised in Mexico. (CR Doc. 6 at 2, 7) At the time of the charged crimes, she was a legal permanent resident of the United States. (Id. at 6) On March 14, 2017, Movant entered into a plea agreement subsequent to which she pled guilty to Count 2 of the indictment charging possession with intent to distribute cocaine. (CR Doc. 50) On August 25, 2017, Movant was sentenced to thirteen months of imprisonment with credit for time served, and a three-year term of supervised release. (CR Doc. 80) Movant did not appeal her sentence or conviction.


         Movant asserts two grounds for relief. In Ground One, she argues her trial counsel provided ineffective assistance by advising her to enter into a plea agreement which included a waiver of her right to appeal or collaterally challenge her sentence. (Doc. 1 at 5) Movant states that she had not been “fully apprised of the consequences of relinquishing the post sentencing options.” (Id.) Movant contends that her waiver was made unknowingly and involuntarily. (Id.) She declares that trial counsel did not explain what the terms “collateral attack” or “2255” meant, or how these avenues of post-conviction relief “could impact her after sentencing.” (Id.)

         Movant argues in Ground Two that her plea also was made involuntarily and unknowingly because her trial counsel failed to inform her that by pleading guilty to Count 2, she would “become mandatorily deportable” and that the plea “would definitely expose her to certain deportation after completion of her term in prison.” (Id. at 6) Further, Movant states that had she been made aware that she would definitely be deported because of her plea, she would have opted instead to proceed to trial. (Id.)

         Movant also declares that although she filed the Motion more than a year after her judgment of conviction became final, the Motion was nonetheless timely “pursuant to the retroactivity of the Supreme Court ruling in Jae Lee v. United States, and the fact that the Movant was still in custody pursuant to an imposed term of supervised release.” (Id. at 9).


         A habeas movant asserting equitable tolling “should receive an evidentiary hearing when he makes ‘a good-faith allegation that would, if true, entitle [the movant] to equitable tolling.'” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003)). Here, as discussed below, Movant does not present a good-faith allegation warranting equitable tolling, and the record does not support a finding of equitable tolling. Moreover, Movant does not claim actual innocence, and the record does not support the conclusion that Movant could argue such a claim.


         Respondent urges that the Motion is untimely because Movant filed it after the expiration of the applicable one-year statute of limitations, without excuse. (Doc. 16 at 6-8) Whether the Motion is time-barred by the statute of limitations is a threshold issue for the Court. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Movant's habeas petition because she filed it after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).

         The AEDPA establishes a one-year limitations period for federal prisoners to file a motion collaterally attacking their convictions under section 2255. 28 U.S.C. § 2255(f). The ...

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