Page 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

UNITED STATES OF AMERICA, Case No. 6:15-cr-00264-AA

 6:19-cv-01406-AA

 OPINION AND ORDER

v.

CLEMENTE PINEDA,

Defendant.

AIKEN, District Judge:

This matter comes before the Court on defendant Clemente Pineda’s Motion to 

Vacate or Correct Sentence pursuant to 28 U.S. § 2255. Doc. 25. For the reasons 

below, defendant’s motions are DENIED.1 Because the motions and record 

conclusively show that Defendant is not entitled to relief, no evidentiary hearing is 

warranted.

/ / /

/ / /

 

1 Defendant also requests appointment of counsel in this matter. However, 

because no relief is available the Court declines to appoint counsel.

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BACKGROUND

On July 15, 2015, defendant was indicted on one count of Felon in Possession 

of a Firearm, in violation of 18 U.S.C. § 922(g)(l). Doc. 1. Defendant entered a plea of 

guilty to the charge on January 7, 2016. Doc. 15. Pursuant to a plea negotiated 

agreement with the government, the parties jointly recommended a sentence of 60 

months in custody, though defendant’s advisory guideline range was 63-78 months. 

On April 19, 2016, the Court imposed a 60 month in custody sentence, with a threeyear term of supervised release to follow. Doc. 22.

Defendant did not take a direct appeal in this case but instead filed the present

Motion to Vacate or Correct Sentence pursuant to 28 U.S. § 2255 (doc. 51).

STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may 

move the court that imposed the sentence to vacate, set aside, or correct the sentence 

on the ground that:

[T]he sentence was imposed in violation of the Constitution or laws of 

the United States, or that the court was without jurisdiction to impose 

such sentence, or that the sentence was in excess of the maximum 

authorized by law, or is otherwise subject to collateral attack....

28 U.S.C. § 2255(a).

To warrant relief, a petitioner must demonstrate that the error of 

constitutional magnitude had a substantial and injurious effect or influence on the 

guilty plea or the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see 

also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now 

that Brecht’s harmless error standard applies to habeas cases under section 2255, 

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just as it does to those under section 2254.”).

Under § 2255, “a district court must grant a hearing to determine the validity 

of a petition brought under that section, ‘[u]nless the motions and the files and 

records of the case conclusively show that the prisoner is entitled to no relief.’” United 

States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in 

original) (quoting 28 U.S.C. § 2255). In determining whether a § 2255 motion 

requires a hearing, “[t]he standard essentially is whether the movant has made 

specific factual allegations that, if true, state a claim on which relief could be 

granted.” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in 

original, internal quotation marks and citation omitted). 

DISCUSSION

Initially, the Court notes that this motion would ordinarily be untimely. 28 

USC § 2255(f)(1) (motions under this section are subject to a 1 year period of 

limitation.) However, that prescription does not apply when a claim relies on a 

“right . . . newly recognized by the Supreme Court and made retroactively applicable 

to cases on collateral review.” 28 U.S.C. § 2255(f)(3) Here, defendant asserts that his 

sentence is now unconstitutional under the Supreme Court’s decision in Rehaif v. 

United States, 139 S. Ct. 2191 (2019). There the Court held that when a defendant 

is charged under 18 U.S.C. § 922(g), the government must prove that the defendant 

knew that she possessed a firearm and that she knew she held the relevant status as 

a felon. 

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The Court notes that Rehaif has not been found to apply retroactively to cases 

on collateral review. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (Finding 

that Rehaif “did not announce a new rule of constitutional law”). However, even if 

Rehaif were retroactive, the Court would still find that plaintiff is not entitled to relief 

under its holding as he could not show that he was unaware of his status as felon. 

The indictment in this case specifically alleged that defendant had been 

previously convicted of state crimes punishable by imprisonment for a term exceeding 

one year, including Robbery in the Second Degree and Burglary in the Second Degree

when he possessed a firearm subject to the statute under which we was charged. Doc. 

1. Indeed, in his plea petition, defendant specifically admitted:

On or about May 5, 2015, in Oregon, I knowingly possessed the firearm 

which is described in the Indictment. The firearm had been previously

shipped in interstate or foreign commerce. I possessed the firearm after 

I was convicted of the crimes described in the Indictment. Those crimes 

are punishable by a term of imprisonment exceeding one year.

Doc. 17 at *8 (emphasis added). This admission is binding on defendant. See United 

States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019), cert. denied, 140 S. Ct. 818, 

(2020).

Any fair reading of the record cannot show that defendant was unaware of his 

status as felon at the time he possessed a firearm. The presentence report in this 

case also revealed that when he committed the present offense, defendant was still

on post-prison supervision following a 70-month term of imprisonment resulting from 

an Oregon state conviction for Robbery II. Given the record before it, the Court 

denies the motion and finds that an evidentiary hearing is unnecessary.

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The Court also declines to issue a certificate of appealability in this case. A 

final order in a § 2255 proceeding may not be appealed unless a judge issues a 

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability 

may not issue unless “the applicant has made a substantial showing of the denial of 

a constitutional right.” 28 U.S.C. § 2253(c)(2). Here, the Court concludes that 

defendant has failed to make the required showing and so declines to issue a 

certificate of appealability.

CONCLUSION

For the reasons set forth above, Defendant’s Motion to Vacate or Correct 

Sentence under 28 U.S.C. § 2255 (Doc. 25) is DENIED. No evidentiary hearing is 

necessary because the allegations in Defendant’s motion, when viewed against the 

record, do not give rise to a claim for relief. The Court declines to issue a certificate 

of appealability.

IT IS SO ORDERED 

Dated this ______ day of June 2020 

______________________________

Ann Aiken

United States District Judge

11th

/s/Ann Aiken

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