United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
November 1, 2018,  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.
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.
SUMMARY OF COURT PROCEEDINGS
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'S HABEAS GROUNDS
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
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.
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).
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.
THE MOTION IS UNTIMELY, WITHOUT EXCUSE
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)).
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