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Moya v. United States

United States District Court, D. Maryland

April 17, 2017

JOSE MANUEL MOYA
v.
UNITED STATES OF AMERICA Criminal No. DKC 04-0064-17

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW United States District Judge.

         Petitioner Jose Manuel Moya filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on October 14, 2016.[1] ECF No. 531. He seeks a six (6) month reduction of his sentence - to a sentence of seventy-two (72) months.

         The court issued an Order on November 9, 2016, advising Moya that it previously granted him a motion to reduce sentence pursuant to Amendment 782 and reduced his sentence to sixty-four (64) months. The court directed the clerk to mail a copy of the sentence reduction order to Moya and provided him time to advise the court whether, after review of the sentence reduction order, he still wished the court to consider his motion to vacate, set aside or correct sentence. ECF No. 532. On December 15, Moya advised the court that he did desire the court to adjudicate his motion to vacate, set aside or correct sentence. ECF No. 533. The same date, Moya also filed a motion for declaratory relief or, alternatively, for an immigration departure. ECF No. 534. The government filed a response in opposition to both motions. ECF No. 537. Petitioner has not filed a reply. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, both motions will be denied.

         I. Background

         On February 11, 2013, Jose Manuel Moya pled guilty to Count One of the Superseding Indictment charging him with conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. § 846. He was sentenced on June 25, 2013, to a 78 month term of imprisonment. He did not appeal.

         The court granted Moya's motion to reduce sentence and reduced his sentence to sixty-four (64) months pursuant to Amendment 782 on July 23, 2015. ECF No. 529.

         II. Motion to Vacate, Set Aside, or Correct Sentence

         A. Standard of Review

         To be eligible for relief under 28 U.S.C. § 2255, a petitioner must show, by a preponderance of the evidence, that his “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[.]” 28 U.S.C. § 2255(a). A pro se movant, such as Petitioner, is entitled to have his arguments reviewed with appropriate consideration. See Gordon v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978). But if the § 2255 motion, along with the files and records of the case, “conclusively show[s] that the prisoner is entitled to no relief, ” the claims raised in the motion may be summarily denied. See 28 U.S.C. § 2255(b).

         B. Analysis

         Petitioner's motion to vacate sentence requests a six (6) month reduction of his sentence. He argues that he is a deportable alien and such status renders him ineligible for the benefits of 18 U.S.C. § 3624(c), which provides inmates with six (6) months in a community corrections environment prior to release.

         Petitioner's motion for declaratory relief requests the court to reduce his sentence by ten percent (10%) or, alternatively, to direct the Bureau of Prisons to transfer him to a facility that has implemented the Institutional Hearing Program (IHP) because Rivers Correctional Institution, where he is currently incarcerated, does not offer the program. The IHP is a coordinated effort by the Bureau, the Immigration and Customs Enforcement (ICE), and the Executive Office for Immigration Review (EOIR), to provide deportation, exclusion, or removal proceedings to sentenced aliens.

         Relief under 28 U.S.C. § 2255 is available only upon a petitioner proving by a preponderance of the evidence that his “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[.]” It does not permit a court to modify a lawful sentence, as Petitioner requests here.

         To the extent Petitioner challenges the execution of his sentence, rather than its imposition, his claim may fall within the purview of 28 U.S.C. § 2241. Petitions under this section, however, must be filed “in the district of confinement rather than in the sentencing court.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (citing United States v. Brown, 753 F.2d 455 (5th Cir. 1985)). Moreover, federal prisoners are required to exhaust the administrative remedies provided by the Bureau of Prisons prior to commencing an action under § 2241. See Pelissero v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999). Petitioner is ...


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