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United States v. Mazzeo

United States District Court, D. Nevada

April 4, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
TARA MAZZEO, Defendants.

          ORDER

         Presently 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).

         Also 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).

         As an 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.

         I. Background

         On 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).

         At the 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 149).

         On 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).

         On 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).

         In the 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).

         II. Legal Standard

         Federal 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).

         Limitations 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).

         “When 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 (1998).

         Defendants 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 ...


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