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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Hector Francisco-Parra,

Petitioner, 

vs.

United States of America,

Respondent.

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CASE NO. CV-05-632-TUC-FRZ

 CR-01-616-PHX-FRZ

ORDER

Petitioner has filed a “Motion for Time Reduction by an Inmate in Federal Custody

(28 U.S.C. § 2255).” 

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States

District Courts provides, in relevant part, that

[i]f it plainly appears from the motion, any attached exhibits,

and the record of prior proceedings that the moving party is not

entitled to relief, the judge must dismiss the motion and direct

the clerk to notify the moving party.

28 U.S.C. foll. § 2255.

Background

Pursuant to a plea agreement, Petitioner entered a plea of guilty to the Information,

which charged him with entering, attempting to enter, and being found in the United States

after having been previously denied admission, excluded, deported, and removed from the

United States, and not having obtained the express consent of the Attorney General to

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reapply for admission to the United States, in violation of 8 U.S.C. § 1326(a) and enhanced

by § 1326(b)(2).

The Court imposed a sentence of thirty months. The Court also placed Petitioner on

supervised release for three years, with the condition that he “shall not commit another

federal, state, or local crime during the term of supervision.” 

On August 15, 2005, Petitioner entered into an agreement with the United States in

which he admitted to violating the terms of his supervised release by committing the offense

of re-entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Pursuant to the

agreement, Petitioner waived “any and all motions, defenses, probable cause determinations,

and objections which [he] could assert to the information or indictment, or petition to revoke,

or to the Court’s entry of judgment and imposition of sentence upon [him] providing the

sentence is consistent with [the] agreement.” In addition, Petitioner waived “any right to

collaterally attack [his] conviction and sentence in a habeas petition under 28 U.S.C. § 2255

or motion under any other statute or rule.”

The agreement provided for a sentencing range of 4-27 months, depending on

Petitioner’s criminal history. The Court imposed a sentence of 5 months, to be served

consecutive to his thirty month sentence in 05-CR-830-TUC-FRZ.

Discussion

In his motion, Petitioner seeks a reduction of his sentence. He contends that his right

to equal protection is violated by the fact that deportable alien prisoners, unlike their United

States citizen counterparts, are ineligible for a one-year sentence reduction for attending a

drug treatment program during incarceration and early release to a half-way house. His

motion also contains a petition for commutation of sentence, which is not within this Court’s

authority to grant or deny. See Graham v. Angelone, 73 F. Supp. 2d 629, 630 (E.D.

Va.1999).

Petitioner waived “any right to collaterally attack [his] conviction and sentence in a

habeas petition under 28 U.S.C. § 2255 or motion under any other statute or rule.”

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Alternatively, the Ninth Circuit Court of Appeals rejected Petitioner’s argument in

McLean v. Crabtree, 173 F.3d 1176 (9th Cir. 1999). In that case, the Ninth Circuit found

that there was no equal protection violation and held that “excluding prisoners with detainers

from participating in community-based treatment programs, and consequently from sentence

reduction eligibility, is at least rationally related to the BOP’s legitimate interest in

preventing prisoners from fleeing detainers while participating in community treatment

programs.” Id. at 1186. 

Conclusion

Accordingly,

IT IS ORDERED that Petitioner’s § 2255 Motion (U.S.D.C. document #49 in

CR-01-616-PHX-FRZ) is DENIED and this case (CV-05-632-TUC-FRZ) is DISMISSED.

IT IS FURTHER ORDERED that the Clerk of the Court SHALL SERVE a copy

of the Motion and this Order on Respondent and SHALL SERVE a copy of this Order on

Petitioner.

DATED this 28th day of October, 2005.

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