United States District Court, D. Alaska
ORDER [RE: MOTION TO VACATE AT DOCKET NO.
K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE.
2012, a trial jury found Duane Byron Fields guilty of certain
federal drug offenses. Docket No. 71; Docket No. 102
(Judgment). His conviction was subsequently affirmed on
appeal. United States v. Fields, 539 Fed.Appx. 776,
777 (9th Cir. 2013). At Docket No. 201, Fields, proceeding
pro se, now moves pursuant to 28 U.S.C. § 2255
to vacate his conviction on the ground that the application
of a 10-year mandatory minimum sentence based on a prior
qualifying drug conviction was invalid because the sentencing
court did not comply fully with the procedural requirements
of 21 U.S.C. § 851.
STANDARD OF REVIEW
28 U.S.C. § 2255 provides, in pertinent part: “A
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside, or
correct the sentence.” Habeas relief is available to
correct errors of jurisdiction and constitutional error but a
general “error of law does not provide a basis for
collateral attack unless the claimed error constituted a
fundamental defect which inherently results in a complete
miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185 (1979).
determining whether a hearing and findings of fact and
conclusions of law are required, ‘[t]he standard
essentially is whether the movant has made specific factual
allegations that, if true, state a claim on which relief can
be granted.'” United States v. Withers,
638 F.3d 1055, 1062 (9th Cir. 2011) (quoting United
States v. Schaflander, 743 F.2d 714, 717 (9th Cir.
1984)). This Court need not hold an evidentiary hearing if
the record conclusively shows that Fields is either not
entitled to relief or if, in light of the record, his claims
are “palpably incredible or patently frivolous.”
Id. (citing Schaflander); see United
States v. Meija-Mesa, 153 F.3d 925, 931 (9th Cir. 1998)
(same). Indeed, mere conclusory statements or statements that
are inherently incredible in a § 2255 motion are
insufficient to require a hearing. See United States v.
Howard, 381 F.3d 873, 879 (9th Cir. 2004); United
States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
Under Rule 4(b) of the Rules Governing Section 2255
Proceedings, when a court receives a § 2255 motion, the
court must initially screen it, and dismiss it summarily if
it plainly appears that the moving party is not entitled to
relief. See United States v. Quan, 789 F.2d 711, 715
(9th Cir. 1986). Summary dismissal pursuant to Rule 4 is
appropriate only where the allegations of the petitioner are
“vague [or] conclusory, ” “palpably
incredible, ” or “patently frivolous or
false.” Hendricks v. Vasquez, 908 F.2d 490,
491 (9th Cir. 1990) (quoting Blackledge v. Allison,
431 U.S. 63, 75-76 (1977)).
2255 contains a 1-year statute of limitations in which to
file a petition to vacate, set aside, or correct. 28 U.S.C.
§ 2255(f); United States v. Buckles, 647 F.3d
883, 887 (9th Cir. 2011). The 1-year limitation period runs
from the latest of: “(1) the date on which the judgment
of conviction becomes final; (2) the date on which the
impediment to making a motion created by governmental action
in violation of [federal law] is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the date on
which the facts supporting the claim or claims presented
could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2255(f).
was entered in this case on October 4, 2012. Docket No. 102.
Fields' direct appeal was denied on August 28, 2013,
Docket No. 118, and the mandate issued on November 6, 2013,
Docket No. 121. Fields did not file for certiorari and thus
his conviction became final 90 days later on February 4,
2014, when the time period for doing so lapsed. See Clay
v. United States, 537 U.S. 522, 532 (2003). Fields thus
had until February 4, 2015, to file his petition to vacate.
The instant motion is deemed filed on April 16,
federal petitions for writs of habeas corpus are generally
barred from federal review. See 28 U.S.C. §
2244(d); 28 U.S.C. § 2255(f). The fact that the
government has not been prejudiced by the prisoner's
delay in bringing the federal action is not material.
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.
2003). A petitioner is entitled to equitable tolling,
however, is he shows: “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way” and prevented timely
filing. Holland v. Florida, 560 U.S. 631, 649 (2010)
(citing Pace v. Diguglielmo, 544 U.S. 408, 418
(2005)). But because Fields has neither demonstrated that he
has diligently pursued his right nor that some extraordinary
circumstance stood in his way to prevent a timely filing,
Fields' motion to vacate is time-barred.
instant claim based on an alleged violation of 21 U.S.C.
§ 851 was not raised on direct appeal. The Supreme Court
has cautioned that “federal habeas is a guard against
extreme malfunctions in the . . . criminal justice systems,
not a substitute for ordinary error correction through
appeal.” Ryan v. Gonzales, 568 U.S. 57, 75
(2013); see also Sanders v. United States, 373 U.S.
1, 25 (1963) (“[T]he Court has consistently held that
neither habeas corpus nor its present federal counterpart
§ 2255 is a substitute for an appeal.”);
United States v. Braswell, 501 F.3d 1147, 1150 (9th
Cir. 2007) (“[B]oth for federal and state convictions,
habeas review is not to substitute for an appeal.”).
Accordingly, a criminal defendant who could have raised a
claim on direct appeal but fails to do so will be found to
have procedurally defaulted that claim, and may raise that
claim on § 2255 collateral review only if the defendant
can show cause and prejudice. Massaro v. United
States, 538 U.S. 500, 504.
relevant here, ineffective assistance of appellate counsel
can constitute the cause required to establish procedural
default. Murray v. Carrier, 477 U.S. 478, 488-92
(1986). However, “appellate counsel's failure to
raise issues on direct appeal does not constitute ineffective
assistance when appeal would not have provided grounds for
reversal.” Wildman v. Johnson, 261 F.3d 832,
840 (9th Cir. 2001).
motion to vacate is premised on the Court's alleged
failure to comply with the procedural requirements of §
851. Specifically, Fields contends that the Court “did
not ask if Fields affirmed or denied the prior conviction,
and the Court did not inform him that he had to raise any
challenge to a prior conviction before the sentence was
imposed.” Docket No. 201 at 16-17. A sentencing court
cannot enhance the sentence of a defendant convicted of a
drug offense under 21 U.S.C. § 841(a) on the basis of a
prior felony drug conviction unless the government complies
with the requirements of 21 U.S.C. § 851(a). United
States v. Mayfield, 418 F.3d 1017, 1020 (9th Cir. 2005).
Ninth Circuit law requires “strict compliance with the
procedural aspects of section 851(b).” As the Ninth
Circuit explained, “The § 851(b) colloquy is not
merely a procedural requirement. It serves a functional