ORDER REGARDING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

ANTHONY W. ISHII, District Judge.

I. INTRODUCTION

This matter arises from the jury conviction of Defendant/Petitioner Javier Manzo Lua ("Petitioner"). Petitioner is currently incarcerated at the Fort Dix Federal Correctional Institution at Fort Dix, New Jersey ("Fort Dix FCI") and is proceeding in this matter in propria persona. Petitioner brings a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255. Petitioner's complaint involves allegations ineffective assistance of trial counsel — misadvising petitioner to go to trial — and ineffective assistance of appellate counsel — in failing to notify Petitioner of the issuance of an opinion denying his direct appeal.

II. BACKGROUND

On November 1, 2004, Petitioner was indicted on charges of conspiracy to manufacture and possess with intent to distribute marijuana, possess cocaine with intent to distribute, and distribute methamphetamine. See Doc. No. 1. On May 6, 2005, a one-count Superseding Indictment was filed charging the defendant, Javier Manzo Lua, with a violation of 21 USC § 846 and §§ 841(a)(1) and (b)(1)(A) — Conspiracy to Manufacture Marijuana, Possess Marijuana with the Intent to Distribute, Possess Cocaine with the Intent to Distribute, and Distribute Methamphetamine. See. Doc. No. 273. Petitioner alleges that the United States Attorney's office offered him a plea agreement whereby he would only be sentenced to ten years in custody. See Memorandum in Support of Petitioner's Motion to Vacate, Doc. No. 687 ("2255 Motion") at 8. He alleges that trial counsel, Preciliano Martinez, advised Petitioner that because the government only had a single witness against him that he would not be convicted at trial. See id. In fact multiple witnesses testified against him at trial. See id at 26. Petitioner further alleges that he was never advised of the possible consequences of being convicted at trial. See id at 8. Petitioner alleges that he rejected the plea agreement on the advice of counsel and proceeded to trial. See id. at 9.

On April 10, 2007, Petitioner was found guilty by a jury of the Superseding Indictment. See Doc. No. 523. Petitioner was sentenced to a term of imprisonment of 188 months in custody, a $100.00 penalty assessment, and a 60-month term of supervised release on December 21, 2007. See. Doc. No. 609.

Petitioner retained Mr. Nicholas F. Reyes to file an appeal on his behalf. On October 3, 2008, Petitioner appealed his convictions to the Ninth Circuit Court of Appeals. See 9th Cir. Case No. 08-10003, Doc. No. 14. Petitioner alleges that Mr. Reyes never provided him with a copy of any of the briefs filed in his case.1 See 2255 Motion at 10. A judgment by the Ninth Circuit was issued on November 18, 2009. See 9th Cir. Case. No. 08-10003, Doc. No. 31. The judgment affirmed the decision of the District Court in full. See id. The Ninth Circuit issued a formal mandate on December 14, 2009, pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure, giving effect to the judgment entered on November 18, 2009. See 9th Cir. Case No. 08-10003, Doc. No. 32. Petitioner filed no petition for writ of certiorari with the United States Supreme Court. Petitioner alleges that his appellate counsel never made him aware of the Ninth Circuit judgment despite his "several attempts to reach counsel" and Petitioner's wife making several calls. 2255 Motion at 17. Petitioner further claims to have contacted the Ninth Circuit seeking to determine the status of his case. See id. Petitioner alleges that he first received notice of the Ninth Circuit denial when the Court of Appeals gave him notice dated April 9, 2012. See Id.

On June 13, 2012, Petitioner filed a motion to recall the mandate on the grounds that he was never given notice of the denial of his appeal or the issuance of the mandate. See 9th Cir. Case No. 08-10003, Doc. No. 33 The Ninth Circuit denied Petitioner's motion on June 18, 2012. See 9th Cir. Case No. 08-10003, Doc. No. 34.

On August 17, 2012, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255.

III. LEGAL STANDARD

Title 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, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).

Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir.2003). Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, `[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994), quoting 28 U.S.C. § 2255. The court may deny a hearing if the petitioner's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996), citations omitted. Mere conclusory statements in a Section 2255 motion are insufficient to require a hearing. 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 section 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 U.S. v. Quan, 789 F.2d 711, 715 (9th Cir.1986).

IV. DISCUSSION

A. Timeliness.

Section 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).

1. Newly Recognized Constitutional Right

Petitioner alleges that the Supreme Court's decisions in Missouri v. Frye, 132 S.Ct. 1399 (2012), Lafler v. Cooper, 132.S.Ct. 1376 (2012), and Martinez v. Ryan, 132 S.Ct. 1309 (2012), each triggered a later accrual date of the 1-year limitations period under Section 2255(f)(3).

In order for this to be the case Petitioner's claim must be based upon a constitutional right that is newly recognized and applied retroactively to habeas cases by the United States Supreme Court. See 28 U.S.C. 2255(f)(3). Petitioner contends that his claim of ineffective assistance of counsel during plea bargaining and at sentencing satisfies this requirement, based on the March 12, 2012 companion decisions issued in Lafler and Frye. However, none of the three cited opinions decided a new rule of constitutional law. Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.2012); accord Williams v. United States, 705 F.3d 293, 294 (9th Cir.2013) (per curiam). Rather, "[t]he Supreme Court in [Lafler and Frye] merely applied the Sixth Amendment right to effective assistance of counsel according to the test articulated in Strickland v. Washington, 466 U.S. 668, 686 (1984) and established in the plea bargaining context in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 ... (1985)." Buenrostro, 697 F.3d at 1140; see also Chaidez v. United States, ___ U.S. ___, ___, 133 S.Ct. 1103, 1115 (2013) ("[D]espite the many different settings in which it has been applied, we have never found that an application of Strickland [to a particular form of attorney misconduct] resulted in a new rule.... In short, where we merely apply Strickland in a way that corresponds to an evolution in professional norms, we make no new law.").

Petitioner further contends that the "Martinez for the first time granted the equitable right to raise a claim of ineffective assistance of counsel in a petition for post-conviction collateral relief." 2255 Motion at 14. The Ninth Circuit addressed whether Martinez constituted a new rule of constitutional law in Buenrostro:

Buenrostro, 697 F.3d at 1139-40.

Accordingly, none of the three cases cited by Petitioner operates to provide him with a later start date for the statute of limitations in this case. Buenrostro, 697 F.3d at 1140; Baker v. Ryan, 497 Fed. Appx. 771, 773 (9th Cir. 2012) (unpublished) (Lafler and Frye "do not recognize new constitutional rights," citing Buenrostro); Burns v. Swarthout, 2013 WL 5345813 (N.D.Cal. Sept.20, 2013).

2. Finality of Judgment

It appears then that § 2255(f)(1) sets the date that Petitioner's 1-year limitations period began to run. Generally, "[f]inality attaches when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Buckles, 647 F.3d at 887; U.S. v. Garcia, 2010 F.3d 1058, 1060 (9th Cir. 2000). A party has ninety days from the date of entry of judgment by the Circuit Court to seek certiorari with the United States Supreme Court. See Sup.Ct. R. 13.1.

Viewing the record in the manner most favorable to Petitioner, the 1-year limitations period began to run on May 5, 2010; the date the judgment became final. This is so because the judgment by the Ninth Circuit Court of Appeals was issued on December 15, 2009, thus, the time to seek certiorari with the United States Supreme Court expired on May 5, 2010. Petitioner did not file the instant motion until August 17, 2012; more than a year after the limitations period had run. Petitioner does not dispute this issue. Thus, petitioner's federal petition for writ of habeas corpus will be time-barred unless he is entitled to the benefit of tolling.

Although § 2255(f)'s 1-year limitations period may be raised sua sponte, the court must give the petitioner notice and an opportunity to respond before dismissing the case. See Herbst v. Cook, 260 F.3d 1039, 1043-44 (9th Cir. 2001). In accordance with the Herbst mandate, notice is given to petitioner that his claim is untimely. As explained in the following discussion, if Petitioner cannot make the required showings for equitable tolling his motion will be dismissed as untimely.

B. Equitable Tolling

Even if the 1-year limitations period has run, a petitioner may be entitled to "equitable tolling." Buckles, 647 F.3d at 887. "A § 2255 movant is entitled to equitable tolling only if 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." Buckles, 647 F.3d at 887. "The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (citations omitted). A petitioner must provide specific facts regarding what was done to pursue the petitioner's claims to demonstrate the diligence required for equitable tolling. Roy v. Lampert, 465 F.3d 964, 973 (9th Cir.2006). Conclusional allegations are generally inadequate. Williams v. Dexter, 649 F.Supp.2d 1055, 1061-62 (C.D.Cal.2009).

"The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland v. Florida, 560 U.S. 631, 653 (2010) (citations omitted). However, "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002)). The effort required is what a reasonable person might be expected to deliver under his or her particular circumstances. Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.2011). Because a pro se petitioner's habeas filings must be construed with deference, a court will construe liberally such a petitioner's allegations regarding diligence. Roy v. Lampert, 465 F.3d 964, 970 (9th Cir.2006).

It is well established "that an attorney's failure to file a federal habeas petition despite his client's request to do so, and failure to communicate with his client despite letters and phone calls requesting information, [is] `professional misconduct that ... could ... amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling.'" Buckles, 647 F.3d at 890 (citing Holland v. Florida, 560 U.S. 631, 670 (2010)); see Maples v. Thomas, 132 S.Ct. 912 (2012) (a claim of abandonment by counsel, if true, would suffice to establish extraordinary circumstances beyond his control); Porter v. Ollison, 620 F.3d 952, 960 (9th Cir.2010) (interpreting Holland to treat "violations of canons of professional responsibility" as evidence that attorney's conduct was "extraordinary"). "However, Holland did not hold that attorney misconduct alone could justify equitable tolling where the petitioner himself did not diligently pursue his rights. Indeed, the Court explicitly found that the petitioner's repeated attempts to contact his attorney or have him removed from the case indicated a diligent effort to avoid the running of the statute of limitations." Sanders v. Tilton, 475 F. App'x 118, 120 (9th Cir.) cert. denied, 133 S.Ct. 862, reh'g denied, 133 S.Ct. 1627 (2012) (unpublished); see Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003). The Ninth Circuit has indicated that "if [a petitioner's] allegations about repeated, ignored attempts to contact his attorney are true, they demonstrate both diligence and an extraordinary circumstance..." Munoz v. Smith, ___ Fed.Appx. ___, 2013 WL 5228220, *2 (9th Cir. 2013) (unpublished).

Petitioner alleges that his failure to comply with the 1-year limitations period is a result of abandonment by his appellate counsel. See 2255 Motion at 17. Petitioner alleges that he and his family made numerous unsuccessful attempts to reach counsel and seek the status of his appeal. See 2255 Motion at 20. The frequency of Petitioner's attempts to reach counsel is not reflected in the record. Such evidence is necessary to determine whether or not Petitioner was diligent in pursuing his claim. Petitioner claims to have been made aware of the denial of his appeal by a notice dated April 9, 2012, in response to his inquiry to the Ninth Circuit. See 2255 Motion at 20. The reason why Petitioner waited over three years after his brief was submitted to determine the status of his appeal is also relevant whether equitable tolling should apply.

In accord with the Ninth Circuit's guidance, Petitioner's allegations, if true and more fully developed, may have demonstrated both diligence and extraordinary circumstance. It is unclear whether extraordinary circumstances were the cause of his untimeliness or that the extraordinary circumstances made it impossible to file a petition on time. Accordingly, this Court cannot summarily dismiss this action on timeliness grounds since it does not plainly appear that Petitioner is not entitled to tolling. To avoid dismissal Petitioner will be required to make a showing that he diligently pursued relief (i.e. the regularity of his attempted contacts with counsel and with the Court of Appeals) and that his counsel's failure to inform him of the Ninth Circuit's opinion caused a timely filing by Petitioner to be impossible. Petitioner should submit to the Court, along with his response, any documentation that he can obtain to verify that he did actually attempt to communicate with Mr. Reyes (e.g. any prison mail logs, phone logs from Petitioner's wife, copies of letters sent to Mr. Reyes, etc.) or the Court of Appeals.

C. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a § 2255 petitioner must show: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that the deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005). Courts must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and that counsel "exercised acceptable professional judgment in all significant decisions made. See Strickland, 466 U.S. at 689; Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990). In the context of plea bargains, ineffective assistance of counsel claims may arise not only when an attorney fails to inform a client of a plea bargain, but also when an attorney fails to advise a client to enter a plea bargain when it is clearly in the client's best interest. See Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012); Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012); United States v. Leonti, 326 F.3d 1111, 1120 (9th Cir. 2003); Blaylock, 20 F.3d at 1466. The prejudice prong of Strickland is met in plea bargain cases when the petitioner shows that that the outcome of the plea process would have been different with competent advice. Lafler, 132 S.Ct. at 1384; see also Blaylock, 20 F.3d at 1466. Where ineffective advice leads to the rejection of a plea bargain, a petitioner must show that, but for the ineffective advice of counsel, there is a reasonable probability that the petitioner would have accepted the plea offer, that the prosecution would not have withdrawn the offer in light of intervening circumstances, that the court would have accepted the plea offer's terms, and the conviction, sentence, or both would have been less severe than under the judgment and sentence actually imposed. Lafler, 132 S.Ct. at 1384. If a petitioner can show ineffective assistance of counsel with respect to a rejected plea offer, a court must fashion a remedy that will "`neutralize' the taint' of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources that the [government] properly invested in the criminal prosecution." Id. at 1388-89. Generally, the remedy crafted will be either a resentencing in conformity with the term of confinement offered in the plea bargain, or requiring the government to reoffer the plea bargain. See id. at 1389.

Here, the Court is concerned with the representations in the petition. The petition suggests that Petitioner may have received ineffective assistance of counsel during the plea process. Specifically, Petitioner alleges that trial counsel, Preciliano Martinez, advised Petitioner to reject a favorable plea offer based on counsel's representation that there was only a single witness against Petitioner and that Petitioner would not be convicted at trial. See 2255 Motion at 8. In fact, multiple witnesses testified against Petitioner, he was found guilty by a jury, and was sentenced to 188 months in custody. The sentence imposed was nearly 6 years greater than the plea offer. At this point, the Court believes that it is appropriate to order a response from Petitioner's trial counsel.

Once the Court has received Mr. Martinez' response and Petitioner's response to this order, the Court will issue additional orders as it deems necessary.

V. ORDER

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.