United States District Court, D. Nevada
before the court is petitioner Tara Mazzeo's unopposed
motion to alter or amend judgment pursuant to Federal Rule of
Civil Procedure 59(e). (ECF No. 111). The government filed a
non-opposition response. (ECF No. 112).
before the court is petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 55). The government filed a response (ECF No. 71),
to which petitioner replied (ECF No. 85).
initial matter, the court grants petitioner's motion to
alter or amend the court's order (ECF No. 110) entered on
March 23, 2017. (ECF No. 111). In the court's March 23rd
order, the court denied petitioner's 2255 motion as
untimely. (ECF No. 11). Upon reconsideration, the court finds
petitioner's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (ECF No. 55) to be
timely. Accordingly, the court will consider petitioner's
2255 motion on the merits.
September 18, 2012, the federal grand jury returned an
indictment charging petitioner with three counts of making
false statements in violation of 18 U.S.C. § 1001. (ECF
No. 1). Petitioner proceeded to trial, and on February 26,
2013, a jury verdict was entered finding petitioner guilty on
counts one and three of the indictment. (ECF No. 30).
close of evidence, the court instructed the jury that to
prove petitioner acted “willfully, ” the
government must prove that she acted “deliberately and
with knowledge that the statement was untrue[, ]” but
it was not necessary for the government to prove that she
“had an evil intent.” (ECF No. 40 at 158).
Petitioner did not object to this instruction. (ECF No. 40 at
September 5, 2013, the court sentenced petitioner to five (5)
years probation per count to run concurrently with special
conditions. (ECF No. 42). Judgment was entered on September
9, 2013. (ECF No. 43).
September 9, 2013, petitioner filed a notice of appeal. (ECF
No. 44). The Ninth Circuit affirmed the district court on
January 23, 2015 (ECF No. 49), and denied petitioner's
petition for rehearing en banc on March 20, 2015.
The order on mandate affirming the district court's
judgment was entered on April 7, 2015. (ECF No. 52).
instant motion, petitioner moves to vacate arguing
ineffective legal counsel based on trial counsel's
failure to object to the jury instructions. (ECF No. 55).
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Section 2255 relief should be granted only where “a
fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
a defendant has raised a claim and has been given a full and
fair opportunity to litigate it on direct appeal, that claim
may not be used as basis for a subsequent § 2255
petition.” United States v. Hayes, 231 F.3d
1132, 1139 (9th Cir. 2000). Further, “[i]f a criminal
defendant could have raised a claim of error on direct appeal
but nonetheless failed to do so, ” the defendant is in
procedural default. Johnson, 988 F.2d at 945;
see also Bousley v. United States, 523 U.S. 614, 622
who fail to raise an issue on direct appeal may later
challenge the issue under § 2255 only if they
demonstrate: (1) sufficient cause for the default; and (2)
prejudice resulting from it. See Bousley, 523 U.S.
at 622. The “cause and prejudice” exception
revives only defaulted constitutional claims, not