United States District Court, D. Minnesota
Richard Newberry, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for plaintiff.
Justin James Rodriguez, Reg. No. 15946-041, Federal Detention Center, P.O. Box 5010, Oakdale, LA 71463, pro se defendant.
ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28U.S.C.§ 2255
JOHN R. TUNHEIM, District Judge.
Petitioner Justin James Rodriguez pled guilty to a charge of felon in possession of a firearm and is currently serving a sentence of 108 months, followed by a supervised release term of three years. Rodriguez moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on May 20, 2013. The Court denied the motion. This matter is now before the Court on Rodriguez's second motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The Court will deny the motion because it is a second or successive habeas petition that the Eighth Circuit did not certify as containing a new rule of retroactively-applicable constitutional law or newly discovered evidence sufficient to overturn Rodriguez's conviction.
I. PREVIOUS PROCEEDINGS
On June 21, 2011, Justin James Rodriguez was indicted for being a felon in possession of a firearm. (Indictment, June 21, 2011, Docket No. 1.) Rodriguez pled guilty to the offense. (Plea Agreement & Sentencing Stipulations, Jan. 25, 2012, Docket No. 49.) On August 23, 2012, the Court sentenced Rodriguez to 108 months imprisonment, followed by three years of supervised release. (Sentencing J., Aug. 27, 2012, Docket No. 65.) Rodriguez appealed, arguing that the sentence was substantively unreasonable, and the Eighth Circuit affirmed the judgment of the Court. United States v. Rodriguez, 502 F.Appx. 619, 620 (8th Cir. 2013).
Rodriguez filed his initial habeas petition pursuant to 28 U.S.C. § 2255 on May 20, 2013. (Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, May 20, 2013, Docket No. 81.) He advanced several arguments in his first petition, including that he received ineffective assistance of counsel because his attorney during sentencing did not object to the presentence investigation report's reference to a prior kidnapping and assault. (Mem. Op. & Order Denying 28 U.S.C. § 2255 Mot. & Mot. for Disc. at 7, Dec. 5, 2013, Docket No. 85.) The Court rejected all of Rodriguez's arguments and denied the first § 2255 petition. (Id. at 1-7.)
II. PROCEDURAL HISTORY
Rodriguez filed a second motion to vacate sentence under 28 U.S.C. § 2255 on June 12, 2014 ("2014 habeas petition"), arguing that his sentence should be reduced because he received ineffective assistance of counsel at sentencing. (Mot. to Vacate Sentence ("2014 Petition"), June 12, 2014, Docket No. 88.) The 2014 habeas petition is based on Rodriguez's position that his counsel should have argued for a downward adjustment under the federal sentencing guideline providing for concurrent state and federal sentences for related offenses. U.S. Sentencing Guidelines Manual § 5G1.3(c) (2014). Rodriguez seeks to have his sentence vacated and remanded for re-sentencing. (2014 Petition at 7.) He alleges that he was told by his counsel before sentencing that he would be credited, for his federal sentence, with all of the time he had served since his arrest on January 29, 2011, in connection with a domestic dispute. (Id. at 3-4.) He explains that he recently discovered that 18 U.S.C. § 3585 does not allow the Bureau of Prisons ("BOP") to credit toward his current sentence any pre-sentence time served for another offense and credited against another sentence. (Id. at 4.) Additionally, Rodriguez argues that his claim for ineffective assistance of counsel did not become ripe until the Central Office of the BOP recently denied his request to credit pre-sentence time toward his term of imprisonment. (Id. )
I. STANDARD OF REVIEW
Section 2255 allows a federal prisoner a limited opportunity to seek postconviction relief on the grounds 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." 28 U.S.C. § 2255(a). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete ...