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Hernandez-Garete v. Barnes

United States District Court, D. Minnesota

January 31, 2019

Josephina Hernandez-Garete, Hernandez-Garete,
v.
Warden Nanette Barnes, Respondent.

          JOSEPHINA HERNANDEZ-GARETE, PRO SE.

          ANN M. BILDTSEN & ANA H. VOSS, UNITED STATES ATTORNEY FOR RESPONDENT.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Objection (“Objection”) [Doc. No. 8] of Josephina Hernandez-Garete to Magistrate Judge Leo Brisbois's Report and Recommendation [Doc. No. 6] that Hernandez-Garete's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (“§ 2241 Petition”) [Doc. No. 1] be denied. For the reasons set forth below, and after a de novo review, this Court overrules Hernandez-Garete's Objection, adopts the R&R in its entirety, and denies the Hernandez-Garete's § 2241 Petition.

         I. Background

         In June 2012, Hernandez-Garete was indicted on one count of methamphetamine distribution and three counts of money laundering. See Indictment [Doc. No. 9] at 1-3, United States v. Hernandez-Garete, No. 12-cr-163 (RAJ) (W.D. Wash. June 14, 2012). In November 2012, she entered a guilty plea to one count of drug-distribution and one count of money-laundering. See Plea Agreement [Docket No. 25], United States v. Hernandez-Garete, No. 12-cr-163 (RAJ), (W.D. Wash. Nov. 29, 2012). In March 2013, the U.S. District Court for the Western District of Washington sentenced Hernandez-Garete to 120 months in prison to be followed by a 5-year term of supervised release. See Sentencing J. [Docket No. 37], United States v. Hernandez-Garete, No. 12-cr163 (RAJ) (W.D. Wash. Mar. 26, 2013).

         Hernandez-Garete has since filed at least four challenges to her conviction and sentence. One was her direct appeal, and the other three were collateral challenges of various sorts filed in the U.S. District Court for the Western District of Washington. All of Hernandez-Garete's previous challenges have been denied.

         First, on direct appeal, Hernandez-Garete contended that the U.S. District Court for the Western District of Washington did not properly consider her eligibility for the “safety valve” provision of 18 U.S.C. § 3553(f) at sentencing. See, e.g., Appellant's Br. [Docket No. 25] at 4, Hernandez-Garete v. United States, No. 13-30087 (9th Cir. Oct. 15, 2013). The Ninth Circuit dismissed her appeal on the ground that her plea agreement contained a valid and enforceable plea waiver. See Nov. 23, 2013 Order [Doc. No. 35], Hernandez-Garete v. United States, No. 13-30087 (9th Cir. Dec. 23, 2013).

         Second, in January 2014, Hernandez-Garete filed a 28 U.S.C. § 2255 motion in the U.S. District Court for the Western District of Washington claiming ineffective assistance of counsel. See Def.'s Pet. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Docket No. 50], United States v. Hernandez-Garete, No. 12-cr-163 (RAJ) (W.D. Wash. Jan. 27, 2014). In July 2014, the court denied her motion. See July 14, 2014 Order [Docket No. 8], Hernandez-Garete v. United States, No. 14-cv-141 (RAJ) (W.D. Wash. July 14, 2014).

         Third, in November 2014, Hernandez-Garete moved to amend her sentence, arguing that amendments to § 2D1.1 of the U.S. Sentencing Guidelines should retroactively apply. See Def.'s Mot. to Reduce Sentence [Docket No. 51] at 1-2, United States v. Hernandez-Garete, No. 12-cr-163 (RAJ) (W.D. Wash. Nov. 17, 2014). The U.S. District Court for the Western District of Washington denied that motion in June 2015. See June 8, 2015 Order [Docket No. 55], United States v. Hernandez-Garete, No. 12-cr-163 (RAJ) (W.D. Wash. June 8, 2015).

         Lastly, in June 2016, Hernandez-Garete filed a motion construed by the U.S. District Court for the Western District of Washington as a § 2255 motion, asserting that she was entitled to relief under the U.S. Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2563 (2015). See Def.'s Mot. to Correct Sentence [Docket No. 57], United States v. Hernandez-Garete, No. 12-cr-163 (RAJ) (W.D. Wash. June 10, 2016). In March 2017, the court denied the motion. See March 4, 2017 Order [Docket No. 7] at 1, Hernandez-Garete v. United States, No. 16-cv-892 (RAJ) (W.D. Wash. Mar. 22, 2017).

         Then, on September 13, 2018, Hernandez-Garete filed the subject § 2241 Petition. In it, Hernandez-Garete argues that she is entitled to relief because she was denied her right of due process. (Pet'r's § 2241 Pet. at 6.) On September 19, 2018, Magistrate Judge Brisbois ordered Hernandez-Garete to file an amended petition for writ of habeas corpus. (Sept. 19, 2018 Order [Doc. No. 4].) On October 11, 2018, Hernandez-Garete filed a supplemental response, which did not rest on due process considerations. (See Pet'r's Resp. [Docket No. 5].) Instead, she asserts that: (1) a factfinder “must find the drug quantity applicable to the defendant on an ‘individualized' basis, not just the drug quantity attributable to the con[s]piracy as a whole” before a drug-related conspiracy mandatory minimum sentence may be imposed; and (2) the U.S. District Court for the Western District of Washington sentenced her without following this rule. (Id. at 3-4.)

         In a thorough and well-reasoned R&R, Magistrate Judge Brisbois recommended that Hernandez-Garete's § 2241 Petition be dismissed for lack of subject matter jurisdiction. (R&R at 1.) On November 28, 2018, Hernandez-Garete filed a timely Objection to Magistrate Judge Brisbois's R&R. (Obj. at 1.) In it, Hernandez-Garete reasserted her due process argument under the Fifth Amendment. (Obj. at 1.) Hernandez-Garete continues to attempt to use a petition for writ of habeas corpus under § 2241 to advance her claims-an approach that the U.S. District Court for the Western District of Washington Court and Magistrate Judge Brisbois have thoroughly addressed and rejected. Because this Court fully agrees with the magistrate judge's R&R, this Court overrules Hernandez-Garete's Objection and adopts the R&R in its entirety.

         II. ...


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