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United States v. Fernandez

United States District Court, E.D. Washington

January 14, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN MANUEL FERNANDEZ, Movant.

ORDER DENYING 2255 MOTION

WM. FREMMING NIELSEN, Senior District Judge.

Before the Court is Juan Manuel Fernandez's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, ECF No. 56. The Government responded to Mr. Fernandez's Motion, ECF No. 61, to which Mr. Fernandez replied, ECF No. 66. Mr. Fernandez is appearing pro se in these proceedings.

BACKGROUND

Law enforcement officers began investigating Mr. Fernandez in late July, 2012. ECF No. 49 (hereinafter, "PSR") at 5. Using a confidential informant, law enforcement officers made three controlled purchases of methamphetamine from Mr. Fernandez at his residence. PSR at 5. On August 10, 2012, law enforcement officers executed a search warrant at Mr. Fernandez's residence, which included a locked shed at the rear of the property. Id. at 6. Inside the shed, officers found a rifle on top of a pile of mail addressed to Mr. Fernandez. Id. Mr. Fernandez was not present during the search of his residence. Id.

Mr. Fernandez was indicted on November 20, 2012 for being a felon in possession of a firearm. Mr. Fernandez pled guilty to the charge contained in the Indictment on March 21, 2013. On July 30, 2013, the Court sentenced Mr. Fernandez to 120 months imprisonment. Mr. Fernandez waived his right to direct appeal in his Plea Agreement. Judgment became final for purposes of collateral attack fourteen days after judgment was entered, when the appeal period expired. Mr. Fernandez timely filed the pending Motion on August 7, 2014.

LEGAL STANDARD

Under 28 U.S.C. § 2255, there are four grounds for a court to grant relief to a prisoner who challenges his sentence: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a). Although there are four categories, the claims that fall within the scope of § 2255 are minimal. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). A motion filed pursuant to § 2255 must contain specific facts which would entitle an individual to relief. United States v. Rodriguez, 347 F.3d 818, 824 (9th Cir. 2003).

The Court may dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." 28 U.S.C. § 2255, Rules, Rule 4(b). If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the Government "to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." The Court will then determine if an evidentiary hearing is necessary. Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994). An evidentiary hearing is not needed when facts can be determined from evidence in the record and prior testimony. Id.

DISCUSSION

Mr. Fernandez argues that his conviction is invalid because (1) law enforcement officers failed to serve him with a copy of the search warrant of his residence in violation of the Fourth Amendment and Federal Rules of Criminal Procedure, (2) failure to serve the warrant violated his due process rights, and (3) the Government failed to disclose information regarding how one of the investigating police officers was the subject of internal disciplinary investigations, implicating the officer's credibility in violation of Franks v. Delaware, 438 U.S. 154 (1978). Even accepting the truth of Mr. Fernandez's factual allegations, no hearing is warranted. The Court will decide the motion based on the briefing and the record.

1. Law enforcement's alleged failure to serve the search warrant

Mr. Fernandez first argues that law enforcement officers failed to serve him with a copy of the search warrant at the time they searched his residence or any time after the search in violation of the Fourth Amendment and Federal Rule of Criminal Procedure 41.[1] Other than his own representations, Mr. Fernandez offers no evidence of the fact that he was not served with the search warrant. The Government, however, provided the Court with copies of the search warrant and the search warrant return. The search warrant return, signed by Officer Scott Reiber, states, "A copy of the search warrant was left on coffee table." ECF No. 61-2 at Bates No. 73. The statement in the search warrant return is corroborated by Officer Reiber's report of the search warrant execution: "Copies of the search warrant along with a search warrant inventory sheet were left at the residence." ECF No. 61-3 at Bates No. 39. A law enforcement officer satisfies Rule 41 when the officer "leave[s] a copy of the warrant and receipt [for property taken] at the place where the officer took the property." Fed. R. Crim. P. 41(f)(1)(C).

The evidence provided by the Government shows that law enforcement officers complied with Rule 41 by leaving a copy of the search warrant at Mr. Fernandez's residence, even if they did not personally give Mr. Fernandez a copy. See ECF No. 61-2 and 61-3. The Government also provided copies of the search warrant and receipt to Mr. Fernandez in discovery.[2] Mr. Fernandez fails to allege specific facts showing that law enforcement officers violated the Fourth Amendment or Rule 41. Mr. Fernandez is not entitled to the relief he requests.

Even if the Court found that law enforcement officers did not properly serve Mr. Fernandez with the search warrant, a violation of Rule 41 generally does not provide grounds for relief, United States v. Williamson, 439 F.3d 1125, 1132 (9th Cir. 2006), and Fourth Amendment violations are not cognizable in § 2255 proceedings. A federal prisoner is precluded from raising Fourth Amendment violations in § 2255 proceedings when he has had a full and fair opportunity to litigate the Fourth Amendment claim at trial and present issues on direct appeal. Tisanado v. United States, 547 F.2d 452, 456 (9th Cir. 1976) (citing Stone v. Powell, 428 U.S. 465 (1976)). The fact that Mr. Fernandez entered a guilty plea pursuant to a plea agreement does not mean that he did not have a full and fair opportunity to ...


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