United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
pending before the Court is a motion to correct a sentence
under 28 U.S.C. § 2255. (ECF Nos. 22, 25, 28.) For the
reasons given herein, the motion is denied.
FACTS AND PROCEDURAL BACKGROUND
2008, after having pled guilty to one count of bank robbery
under 18 U.S.C. § 2113(a), Luis Herrera was sentenced to
87 months in federal custody to be followed by three years of
supervised release. (J., ECF No. 21.) In November 2008, Mr.
Herrera was convicted in Nevada state court on counts one,
two, and four of a four-count indictment. (State Court
Minutes, ECF No. 22 at 2-3.) On count one, for burglary, Mr.
Herrera received a sentence of 48 to 120 months; on count
two, for robbery with use of a deadly weapon, he received a
sentence of 72 to 180 months; and as to count four, for
attempted murder with use of a deadly weapon, he received a
sentence of 120 months to life. Adjudication was stayed with
respect to the remaining count. The state court specified
that the sentence for count four was “to run CONCURRENT
with counts 1, 2, and FEDERAL CASE, ” presumably making
reference to the above-captioned case in which Mr. Herrera
pled guilty to bank robbery.
Herrera is currently in custody of the Nevada Department of
Corrections, serving his state sentence(s). Upon denial of
parole in April 2017, the Board of Parole Commissioners made
the following determination, considering it a mitigating
factor applicable to Mr. Herrera's case (i.e., a factor
weighing in favor of granting parole): “Pending CS
sentence or detainer lodged by other jurisdiction: Has U.S.
Marshall HOLD.” (Order Denying Parole 2, ECF No. 22 at
5.) Perhaps prompted by the parole board's note regarding
his U.S. Marshall hold, Mr. Herrera filed the instant motion
under 28 U.S.C. § 2255, asking the Court now to modify
his federal sentence that it may run concurrently with his
state sentence. He has also filed motions for leave to
proceed in forma pauperis and for appointment of
counsel. (ECF Nos. 24, 27.)
prisoner in custody under a federal sentence may move the
sentencing court to vacate, correct, or set aside a sentence
that was imposed in violation of the Constitution or laws of
the United States, was imposed by a court without proper
jurisdiction, was in excess of the maximum sentence
authorized by law, or is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). The petitioner must bring
such a motion within one year of the latest of: (1) the final
judgment of conviction; (2) the removal of any impediment to
bringing the petition caused by unconstitutional government
action; (3) the date on which the Supreme Court first
recognizes the right asserted, if the Supreme Court has made
the right retroactively applicable to 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).
Section 2255 Motion
motion is denied, first because the Court is bound by the
statutory time limits applicable to its filing. Mr.
Herrera's final judgment of conviction was entered on
June 23, 2008, well over one year before Mr. Herrera filed
his motion. (ECF No. 21.) Mr. Herrera also has not identified
any impediment that prevented him from bringing his motion
sooner, nor any relevant right newly recognized by the
Supreme Court. Lastly, Mr. Herrera has not alleged when he
discovered the facts upon which his claim is based. However,
the Court finds that a defendant exercising due diligence
would have known all the pertinent facts long ago. Mr.
Herrera's only argument for relief is that this Court did
not state whether his federal sentence would run concurrently
with or consecutively to any anticipated state sentence, and
the state court later indicated his state sentence would run
concurrently with the prior federal sentence. On this basis
alone, Mr. Herrera asserts that his federal sentence should
be modified to conform to the state court's decision
regarding concurrent sentences. Mr. Herrera would have known
the details of both sentences, including whether and how they
were to run concurrently with one another, at the time the
sentences were pronounced; thus, no later than November 2008.
Accordingly, Mr. Herrera's motion is untimely, and may
not be entertained by the Court.
the motion fails on its merits. The state court's
pronouncement that Mr. Herrera's state sentences are to
run concurrently with his federal sentence is not proper
grounds for disturbing the federal sentence. Ultimately,
“the state court has no control over the federal
sentence.” Eccleston v. United States, 648
Fed.Appx. 606, 607 (9th Cir. 2016), cert. denied,
137 S.Ct. 676, 196 L.Ed.2d 560 (2017) (citing Taylor v.
Sawyer, 284 F.3d 1143, 1151-52 (9th Cir. 2002)).
Pursuant to federal statute, “[m]ultiple terms of
imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run
concurrently.” 18 U.S.C.A. § 3584(a). Here, Mr.
Herrera's federal sentence was silent with respect to
whether it would run concurrently with any future state
sentence; therefore, the statutory default would dictate that
the federal sentence should be treated as consecutive to the
state sentences, which were imposed at a different time.
See Setser v. United States, 566 U.S. 231, 238 n.3
most, “concurrent sentences imposed by state judges are
nothing more than recommendations to federal
officials.” Taylor, 284 F.3d at 1150 (quoting
Del Guzzi v. United States, 980 F.2d 1269, 1272-73
(9th Cir. 1992)). The Ninth Circuit has endorsed Bureau of
Prisons policies which permit the BOP, in its discretion, to
designate a state institution for concurrent service of a
federal sentence, “if a ‘state jurisdiction'
makes a ‘request' that state and federal sentences
be treated as concurrent terms of imprisonment.”
Id. at 1149. However, in the event of such a request
or recommendation, the BOP remains “free to turn those
concurrent sentences into consecutive sentences by refusing
to accept the state prisoner until the completion of the
state sentence and refusing to credit the time the prisoner
spent in state custody.” Id. at 1150 (quoting
Del Guzzi, 980 F.2d at 1272-73). In sum, the
possibility that Mr. Herrera's federal sentence will be
treated as consecutive despite the state court's decision
to make his state sentences concurrent does not, of itself,
suggest that his federal sentence was unconstitutional,
illegal, excessive, or otherwise subject to collateral
Motions for IFP Status and Appointment of Counsel
Herrera has requested leave to proceed in forma
pauperis, asserting he is unable to pay the fees
associated with his motion and unable to afford counsel. The
Court will deny these requests. First, the District of Nevada
does not require a filing fee for section 2255 motions.
See D. Nev. Form 28.225 Instructions ¶ 7,
https://www.nvd.uscourts.gov/Forms.aspx. Furthermore, a
motion under section 2255 is civil in nature, and there is no
constitutional right to counsel in such collateral
proceedings. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987); Sanchez v. United States, 50 F.3d
1448, 1456 (9th Cir. 1995) (stating that “there is no
constitutional right to counsel at a collateral,
post-conviction section 2255 proceeding”). Of course,
“a court may appoint counsel for a § 2255
petitioner if the interests of justice so require.”
United States v. Washington,782 F.Supp.2d 1, 2-3
(D.D.C. 2011) (citing 28 U.S.C. § 2255(g); 18 U.S.C.
§ 3006A(a)(2)). “In deciding whether to appoint
counsel in a habeas proceeding, the district court must
evaluate the likelihood of success on the merits as well as
the ability of the petitioner to articulate his claims pro se
in light of the complexity of the legal issues
involved.” Weygandt v. Look,718 F.2d 952, 954
(9th Cir. 1983). As shown above, the single argument
presented in Mr. Herrera's motion is not factually or
legally complex, and clearly does not entitle him to the
relief he seeks. Therefore, the Court finds this is not
“the rare section 2255 case in which the appointment of
counsel is warranted.” United States v. Mala,7 F.3d 1058, 1064 (1st Cir. 1993); see also United States