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U.S. v. BORICHA
August 10, 2005.
UNITED STATES OF AMERICA, Plaintiff,
ALTAF A. BORICHA, Defendant.
The opinion of the court was delivered by: RICHARD MILLS, Senior District Judge
The Court now considers Petitioner Altaf A. Boricha's Petition
for Habeas Corpus.
In January 1993, Petitioner Boricha engaged in a conspiracy to
distribute and distribution of methamphetamine. He was arrested
and later pled guilty to those offenses. Following his plea, the
United States Probation Office prepared a Presentence
Investigation Report ("PSR") which applied the 1995 version of
the United States Sentencing Guidelines. Boricha reviewed the PSR with his counsel prior to
his December 1997 Sentencing Hearing. At the Sentencing Hearing,
the Court determined Boricha's offense level and criminal history
before imposing a 120 month sentence. Boricha did not appeal.
Boricha was serving his sentence in Adelanto, CA when, in April
2005, he filed a petition for habeas corpus pursuant to
28 U.S.C. § 2255. The petition was filed in the United States District
Court for the Central District of California, but has since been
transferred here to the sentencing court. Boricha's petition
asserts that he should have been sentenced under the 1993 version
of the Sentencing Guidelines rather than the 1995 version. As
such, Boricha claims that the Court violated his Fifth Amendment
rights when it imposed sentence and that his lawyer was
ineffective (a Sixth Amendment violation) for not insisting that
the 1993 Sentencing Guidelines be applied.
Boricha is seeking habeas corpus pursuant to 28 U.S.C. § 2255.
The revisions to § 2255 by the Antiterrorism and Effective Death
Penalty Act (AEDPA) provide that:
A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run
from the latest of
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
See id., ¶ 6.
Boricha's conviction became final in December 1997. He did not
file his habeas petition until April 2005 and he has not alleged
any impediment to his filing date or a newly recognized right
made applicable to cases on collateral review. Thus, Boricha's
petition is untimely unless saved by § 2255(4). However, Boricha
fails to allege any newly discovered facts which might be
relevant to his Fifth or Sixth Amendment claims. Even if Boricha
was not aware at the time of sentencing that he might fair better under the 1993 Guidelines
than the 1995 Guidelines, the exercise of due diligence on
Boricha's part would have revealed any possible benefit long
before now. Accordingly, Boricha cannot avail himself to §
Ergo, Petitioner's Petition for Habeas Corpus (d/e 1) is
DENIED. Any pending motions are DENIED AS MOOT. This case is
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