United States District Court, W.D. Washington, Seattle
ORDER DENYING PETITION TO SET ASIDE, VACATE, OR
L. ROBART United States District Judge.
the court is Petitioner Andrew Mark Salazar's 28 U.S.C.
§ 2255 petition to set aside, vacate, or correct his
sentence. (Pet. (Dkt. # 1).) In support of his petition, Mr.
Salazar asserts (1) the trial court imposed a sentence in
excess of the legal maximum; (2) the trial court imposed
unconstitutional enhancements to his sentence; and (3)
prosecutorial misconduct. (See Id. at 2.) Respondent
United States of America (“the Government”)
opposes Mr. Salazar's petition. (See Resp. (Dkt.
# 7).) For the reasons stated below, the court DENIES Mr.
Salazar's petition and this matter is DISMISSED with
January 28, 2015, the grand jury returned a superseding
indictment charging Mr. Salazar with producing visual
depictions of minors engaged in sexually explicit conduct and
receiving and possessing visual depictions of minors engaged
in sexually explicit conduct in violation of 18 U.S.C.
§§ 2251(a), 2251(e), 2252(a)(2), and 2252(a)(4).
See United States v. Salazar, No. CR14-0275JLR-1
(W.D. Wash.), Dkt. # 1. On April 13, 2015, Mr. Salazar
pleaded guilty to two counts of possession and receipt of
visual depictions of minors engaged in sexually explicit
conduct in exchange for the dismissal of a count of
production of visual depictions of minors engaged in sexually
explicit conduct. (See id., Dkt. ## 44, 45.) On
August 3, 2015, this court sentenced Mr. Salazar to 238
months imprisonment to be followed by lifetime supervision.
(Id., Dkt. # 59.) Mr. Salazar's sentence fell 22
months short of the high end of the agreed upon
recommendation range detailed in the Plea Agreement. (See
id., Dkt. ## 10, 59.) Mr. Salazar did not appeal his
sentence or convictions. (See generally id.) Mr.
Salazar filed his present motion on November 22, 2017.
(See id., Dkt. # 66; see also Pet.) The
Government timely opposed his petition. (See Resp.)
The court now considers Mr. Salazar's
court denies Mr. Salazar's petition on three procedural
grounds: (1) his petition is time barred; (2) his petition is
barred because he failed to file a direct appeal; and (3) his
petition is barred by the appeal waiver in his plea agreement
that prohibits collateral attacks on his sentence. In
addition, the court also denies Mr. Salazar's petition
because his claims lack merit.
Expiration of the Statute of Limitations
one-year statute of limitations ordinarily applies to 28
U.S.C. § 2255 petitions. See 28 U.S.C. §
2255(f). The one-year statutory period can be triggered by
four different events, but in Mr. Salazar's case it was
triggered when his judgment of conviction became final.
See 28 U.S.C. § 2255(f)(1). Because Mr. Salazar
did not file a direct appeal, his conviction became final
“upon the expiration of the time during which [he]
could have sought review by direct appeal.” United
States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001).
Mr. Salazar's judgment of conviction became final on
August 17, 2015, fourteen days after the entry of the
judgment on August 3, 2015. See Salazar, No.
CR14-0275JLR-1, Dkt. # 59. Mr. Salazar did not file his 28
U.S.C. § 2255 petition until November 22, 2017. (See
id., Dkt. # 66; see also Pet.) Thus, Mr.
Salazar filed the motion over fifteen months after the
statute of limitations expired.
order to avoid the dismissal of his petition on statute of
limitations grounds, Mr. Salazar must demonstrate
“cause” for his procedural default or “some
objective factor external to the defense” that impeded
his adherence to the procedural rule. See Murray v.
Carrier, 477 U.S. 478, 488 (1986); see also United
States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003).
The Supreme Court has also stated that “cause”
for failure to raise an issue exists “where a
constitutional claim is so novel that its legal basis is not
reasonably available to counsel.” Reed v.
Ross, 468 U.S. 1, 16 (1984). Mr. Salazar's constitutional
claims are not novel. (See generally Pet.) Mr.
Salazar also does not offer any argument about how any
external factor impeded his ability to adhere to the statute
of limitations. (See generally id.) Accordingly, the
court denies Mr. Salazar's petition due to the expiration
of the statute of limitations.
Failure to File a Direct Appeal
Salazar's claims are also barred because he failed to
raise them on a direct appeal. A defendant may not raise a
claim on collateral review that was not raised on direct
appeal unless the defendant shows both (1) cause excusing the
procedural default, and (2) actual prejudice from the claim
of error. United States v. Johnson, 988 F.2d 941,
945 (9th Cir. 1993). Mr. Salazar has made neither showing.
Indeed, he received a sentence below the top of the range
expressly agreed to in his plea agreement. See
Salazar, No. CR14-0275JLR-1, Dkt. # 45. Accordingly, the
court also denies Mr. Salazar's petition on this ground.
Waiver of Appeal or Collateral Attack
Salazar's petition is also barred by the appeal waiver in
his plea agreement, which includes a waiver of the right to
bring a collateral attack against his conviction and sentence
except as it may relate to the effectiveness of his legal
representation. (See id.) Although he alleges
prosecutorial misconduct, nowhere in his petition does Mr.
Salazar allege ineffectiveness of counsel. (See
generally Pet.) Statutory rights of appeal or collateral
attack may be waived by a criminal defendant in a valid plea
agreement. United States v. Leniear, 574 F.3d 668,
672 & n.3 (9th Cir. 2009) (citing United States v.
Abarca, 985 F.2d 1012, ...