1 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 || UNITED STATES OF AMERICA, 11 Plaintiff, Case No. 2:13-cr-0424-LDG (VCF) 12 || v. ORDER 13 || EDWIN VALLADARES-FERNANDEZ, 14 Defendant. 15 16 The defendant, Edwin Valladares-Fernandez, sent a letter to this Court which has 17 || been docketed as a Motion to Review Sentence, and which the Court has considered as □ 18 | Motion Pursuant to

to Vacate, Set Aside, or Correct Sentence (ECF No. 47). The United States opposes the motion (ECF no. 49). The Court will deny the motion 20 Valladares-Fernandez pled guilty to being a deported alien found unlawfully in the 21 || United States in violation of

. In determining Valladares-Fernandez’ 22 || sentence, the Court imposed an enhancement pursuant to §2L1.2(b)(1)(A)(ii) because he 23 || had previously been deported after sustaining a felony conviction for a crime of violence. 24 || Critically, Valladares-Fernandez was sentenced pursuant to the advisory Sentencing 25 | Guidelines in effect on the date of his sentencing. 26

1 To the extent Valladares-Fernandez argues that his prior felony conviction no longe 2 || qualifies as a crime of violence pursuant to the Supreme Court’s decision in Johnson v. 3 || United States,

(2015), his argument is foreclosed by Beckles v. United 4|| States,

(2017). In Johnson, the Supreme Court held that the vagueness of 5 || the residual clause in the definition of a “violent felony” in the Armed Career Criminal Act c 6 || 1984,

(e)(2)(B) (ACCA), violated the Constitution’s Due Process Class. 13 7 || S.Ct. at 2557, 2563. However, Valladares-Fernandez was sentenced pursuant to advisor 8 | Sentencing Guidelines. In Beckles, the Supreme Court held that “the advisory Sentencing 9 || Guidelines are not subject to a vagueness challenge under the Due Process Clause □ □ ..” 10 ||

. 11 To the extent Valladares-Fernandez argues that, at the time of his sentencing, his 12 || prior felony conviction did not qualify as a crime of violence pursuant to the Supreme 13 || Court's decision in Johnson v. United States,

(2010), any such claim is 14 || untimely. Relief sought pursuant to §2255 must generally be brought within one year of th 15 || date on which the judgment became final. The Court received Valladares-Fernandez’ lett 16 || more than one year after his conviction became final. Further, Valladares-Fernandez has 17 || defaulted on such claim. “[T]he general rule [is] that claims not raised on direct appeal me 18 || not be raised on collateral review unless the petitioner shows cause and prejudice.” 19 || Massaro v. United States,

(2003). Valladares-Fernandez has neither 20 || shown cause nor prejudice. 21 Accordingly, having construed Valladares-Fernandez’ letter as seeking relief 22 || pursuant to

, the Court must deny the motion. 23 Certificate of Appealability 24 To appeal this order, Valladares-Fernandez must receive a certificate of 25 || appealability.

(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. □□□□□□□□ Tc 26 || obtain that certificate, he “must make a substantial showing of the denial of a □□□□□□□□□□□□□

1) right, a demonstration that . . . includes showing that reasonable jurists could debate 2 || whether (or, for that matter, agree that) the petition should have been resolved in a 3 || different manner or that the issues presented were adequate to deserve encouragement te 4 || proceed further.” Slack v. McDaniel,

(2000) (quotation omitted). 5 || This standard is “lenient.” Hayward v. Marshall,

(9th Cir. 2010) (en 6 || banc). In the present matter, the Supreme Court’s decision in Beckles is dispositive and precludes this Court from finding that reasonable jurists could debate whether (or, for that 8 || matter, agree that) Valladares-Fernandez can challenge his sentence pursuant to Johnsor 9 || In addition, the Court is precluded from finding that reasonable jurists could debate whethe 10 || he timely filed his challenge to his sentence or that he has not defaulted on his challenge. 11 || Accordingly, the Court will not grant a certificate of appealability. 12 Therefore, for good cause shown, 13 THE COURT ORDERS that Defendant Edwin Valladares-Fernandez’ Motion for 14 || Appointment of Counsel (ECF No. 46) is DENIED. 15 THE COURT FURTHER ORDERS that Defendant Edwin Valladares-Fernandez’ 16 || Letter, which the Court has docketed as a Motion to Review Sentence and construed as a 17 || Motion Pursuant to

to Vacate, Set Aside, or Correct Sentence (ECF No. 18 || 47) is DENIED. 19 THE COURT FURTHER ORDERS that it will not grant a certificate of appealibility. 20 211 DATED this 3/ day of January, 2020. x , 22 (RY) 23 Lloyd D. George United States District Judge 25 26