United States District Court, D. Nevada
M. Navarro, District Judge United States District Court
before the Court is Petitioner Jose Ugarte's
(“Petitioner's”) Motion to Vacate, Set Aside,
or Correct Sentence under 28 U.S.C. § 2255 (“2255
Motion”), (ECF No. 148). The Government filed a
Response, (ECF No. 151), and Petitioner did not file a reply.
pending before the Court are Petitioner's Motion to
Transfer, (ECF No. 145), and Motion for Order regarding the
Motion to Transfer, (ECF No. 154). The Government did not
respond to either Motion.
reasons discussed below, Petitioner's 2255 Motion is
GRANTED in part and DENIED in
part. Petitioner's Motion to Transfer is
April 20, 2015, Petitioner participated in an armed bank
robbery in Las Vegas, Nevada. (See Plea Agreement
4:8-5:8). About a year later, Petitioner and one of his
co-defendants planned to carry out another armed robbery, but
they were apprehended prior to its execution. (Id.
19, 2016, the State of Nevada charged Petitioner with crimes
relating to both the 2015 robbery and the 2016 attempted
robbery in Case No. C-16-315046. (See State Docket,
Ex. 1 to Resp. to 2255 Mot., ECF No. 151). On August 3, 2016,
a federal grand jury returned the Indictment charging
Petitioner and three co-defendants with Conspiracy to
Interfere with Commerce by Robbery in violation of 18 U.S.C.
§ 1951(a) based on the same conduct for which Petitioner
was charged in the state case. (See Indictment, ECF
No. 1). On August 12, 2016, the United States Marshalls
brought Petitioner into federal custody on a writ of habeas
corpus ad prosequendum. (See Writ of Habeas Corpus
Ad Prosequendum, ECF No. 10).
April 21, 2017, Petitioner pleaded guilty to the one count in
the Indictment and admitted to his involvement in the 2015
robbery and 2016 attempted robbery. (Plea Agreement
3:22-5:22). Petitioner and the Government agreed to recommend
his state and federal sentences run concurrently.
(Id. 10:3-5). The Government represents that,
“counsel for the Government's recollection is that
the parties intended for Ugarte to receive a fully concurrent
sentence (i.e., that Ugarte, who was in federal custody on a
writ, receive credit toward his federal sentence back to the
date of his state arrest).” (Resp. to 2255 Mot.
November 17, 2017, the Court sentenced Petitioner to 60
months in custody to run concurrently to his anticipated
state sentence. (See Judgement at 2, ECF No. 172).
Petitioner was then returned to state custody, and he was
sentenced on the state charges twelve days later.
(See State Docket, Ex. 1 to Resp. to 2255 Mot.).
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed the sentence to vacate,
set aside, or correct the sentence. 28 U.S.C. § 2255(a).
Such a motion may be brought on the following grounds:
“(1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack.”
Id.; see United States v. Berry, 624 F.3d
1031, 1038 (9th Cir. 2010).
pursuant to § 2255 must be filed within one year from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). “[A]
district court may deny a Section 2255 motion without an
evidentiary hearing only if the movant's allegations,
viewed against the record, either do not state a claim for
relief or are so palpably incredible or patently frivolous as
to warrant summary dismissal.” United States v.
Burrows, 872 F.2d 915, 917 (9th Cir. 1989). “No
evidentiary hearing is necessary when the issue of
credibility can be conclusively decided on the basis of
documentary testimony and evidence in the record.”
Shah v. United States, 878 F.2d 1156, 1160 (9th Cir.