United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
Jose Manuel Moya filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 on October
14, 2016. ECF No. 531. He seeks a six (6) month
reduction of his sentence - to a sentence of seventy-two (72)
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.
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.
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.
Motion to Vacate, Set Aside, or Correct Sentence
Standard of Review
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. §
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
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.
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.
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 ...