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State v. Durbin

United States District Court, Ninth Circuit

January 14, 2014

UNTIED STATES OF AMERICA, Plaintiff/Respondent,
v.
CHRISTOPHER RYAN DURBIN, Defendant/Movant.

ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

DONALD W. MOLLOY, District Judge.

On August 13, 2013, Defendant/Movant Christopher Ryan Durbin filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Durbin is a federal prisoner proceeding pro se.

In reviewing Durbin's motion, the Court has consulted the reporter's rough transcript of the change of plea and sentencing hearings. The United States will be required to order the transcripts for the record and to deliver a copy of each to Durbin.

I. Preliminary Screening

The motion is subject to preliminary review to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing § 2255 Proceedings for the United States District Courts.

A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) ("Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

II. Background

On December 22, 2011, Durbin was charged with three co-defendants in an indictment alleging conspiracy to manufacture and distribute more than 100 marijuana plants, a violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); possession of more than 100 marijuana plants with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) (Count 2); four counts of structuring currency transactions to avoid reporting requirements, violations of 31 U.S.C. § 5324(a)(1) (Counts 3-6); and a forfeiture count. Because Count 1 alleged the conspiracy involved more than 100 marijuana plants, Durbin faced a mandatory minimum penalty of 5 years if convicted of Count 1. 21 U.S.C. § 841(b)(1)(B)(vii). Attorney Peter Lacny was appointed to represent Durbin. Order (Doc. 22).

On March 7, 2012, Durbin was charged in a Superseding Indictment with conspiracy to manufacture and distribute more than 1, 000 marijuana plants, a violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); possession of more than 1000 marijuana plants with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) (Count 2); one count of structuring currency transactions to avoid reporting requirements, a violation of 31 U.S.C. § 5324(a)(1) (Count 3); conspiracy to launder money, a violation of 18 U.S.C. §§ 1956 and 1957 (Count 4); and a forfeiture count. Superseding Indictment (Doc. 78) at 1-11. Because Count 1 of the Superseding Indictment alleged the conspiracy involved more than 1, 000 marijuana plants, Durbin faced a mandatory minimum penalty of 5 years if convicted of Count 1 Conviction on Count 1 carried a ten-year mandatory minimum penalty. 21 U.S.C. § 841(b)(1)(A)(vii).

On March 14, 2012, the United States filed an Information alleging Durbin had previously been convicted of a felony drug offense. Information (Doc. 97). Filing of the Information subjected Durbin to an enhanced mandatory minimum penalty of 20 years if convicted on Count 1. 21 U.S.C. § 841(b)(1)(A)(vii).

On March 23, 2012, the United States withdrew the § 851 Information, Notice (Doc. 112), and the parties filed a fully executed Plea Agreement. Durbin agreed to plead guilty to Counts 1 and 3 of the Indictment and waived his right to appeal the sentence.[1] Plea Agreement (Doc. 109) at 2-3 ¶ 2, 9 ¶ 8. The United States agreed to dismiss Counts 2 and 4-6 of the original Indictment and the entire Superseding Indictment and to recommend the additional point under U.S.S.G. § 3E1.1(b) as well as a sentence of no more than 97 months. Id. at 3 ¶ 3, 7-8 ¶ 6. Durbin pled guilty in open court on March 26, 2012. Minutes (Doc. 114).

A presentence report was prepared. On July 12, 2012, a sentencing hearing was held. Durbin was sentenced to serve 84 months in prison on each count, concurrently, to be followed by a total term of five years' supervised release. Minutes (Doc. 174); Judgment (Doc. 177) at 2-3.

Durbin signed his § 2255 motion on August 5, 2013. Mot. § 2255 (Doc. 194) at 7; Mot. for Leave to File Late (Doc. 194-1) at 2. Assuming, solely for the sake of argument, that that is when he put his motion in the prison mailing system for delivery to the Clerk of Court, his § 2255 motion was filed on August 5, 2013, Houston v. Lack, 487 U.S. 266, 270-71 (1988), and is ten days late, 28 U.S.C. § ...


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