USA v. Liseno

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff,
v. 	CRIMINAL NO. 2:19-CR-11
(KLEEH)
CARMEN LISENO,
Defendant.
CARMEN LISENO,
Petitioner,
v. 	CIVIL NO. 2:22-CV-16
(KLEEH)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
Pending before the Court is a petition under 28 U.S.C. § 2255
filed 	by 	Carmen 	Liseno 	(“Liseno”). 	For 	the 	reasons 	discussed
herein, the petition is DENIED and DISMISSED with prejudice.
I. 	BACKGROUND
On 	March 	5, 	2019, 	the 	grand 	jury 	returned 	a 	two-count
indictment 	charging 	Liseno 	in 	Count 	One 	with 	Unlawful 	Possession
of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and in Count Two with Possession of a Firearm with an Obliterated
Serial 	Number, 	in 	violation 	of 	18 	U.S.C. 	§§ 	922(k) 	and
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 1 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
2
924(a)(1)(B). 	See ECF No. 1. 1 	The indictment alleged that Liseno
was 	prohibited 	from 	possessing 	a 	firearm 	due 	to 	two 	prior 	felony
grand theft convictions. 	See id.
On May 3, 2019, pursuant to a written plea agreement, Liseno
pleaded 	guilty 	to 	Count 	One. 	See 	ECF 	No. 	23. 	Liseno’s 	plea
agreement included the following appellate waiver:
10. 	Defendant is aware that 18 U.S.C. § 3742
affords 	a 	Defendant 	the 	right 	to 	appeal 	the
sentence imposed. 	Acknowledging this, and in
exchange 	for 	the 	concessions 	made 	by 	the
United 	States 	in 	this 	plea 	agreement,
Defendant waives the following rights:
A. 	Defendant 	knowingly 	waives 	all 	right,
pursuant 	to 	28 	U.S.C. 	§ 	1291 	or 	any 	other
statute or constitutional provision, to appeal
the 	Defendant’s 	conviction 	on 	any 	ground
whatsoever. 	This 	includes 	a 	waiver 	of 	all
rights to appeal the Defendant’s conviction on
the 	ground 	that 	the 	statute(s) 	to 	which 	the
defendant 	is 	pleading 	guilty 	is
unconstitutional, 	or 	on 	the 	ground 	that 	the
admitted 	conduct 	does 	not 	fall 	within 	the
scope of the statute(s).
B. 	The 	Defendant 	knowingly 	and 	expressly
waives 	all 	rights 	conferred 	by 	18 	U.S.C.
§ 3742 to appeal whatever sentence is imposed
(including 	any 	fine, 	term 	of 	supervised
release, 	or 	order 	of 	restitution) 	for 	any
reason 	(including 	the 	establishment 	of 	the
advisory 	sentencing 	guidelines 	range, 	the
determination 	of 	the 	defendant’s 	criminal
history, 	the 	weighing 	of 	the 	sentencing
factors, and any constitutional challenges to
1 Unless otherwise noted, all docket numbers refer to Criminal Action No. 2:19-
CR-11.
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 2 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
3
the calculation and imposition of any term of
imprisonment, fine, order of forfeiture, order
of 	restitution, 	and 	term 	or 	condition 	of
supervised release).
C. 	To 	challenge 	the 	conviction 	or 	the
sentence which is within the maximum provided
in the statute of conviction or the manner in
which it was determined in any post-conviction
proceeding, including any proceeding under 28
U.S.C. § 2255.
Plea 	Ag., 	ECF 	No. 	25, 	at 	¶ 	10. 	On 	October 	1, 	2019, 	the 	Court
sentenced Liseno to 92 months of imprisonment, to run consecutively
to 	any 	previously 	imposed 	sentence, 	followed 	by 	3 	years 	of
supervised release. 	See Judgment, ECF No. 31. 	In calculating the
applicable 	guideline 	range, 	the 	Court 	applied 	a 	four-point
enhancement 	pursuant 	to 	U.S.S.G. 	§ 	2K2.1(b)(4)(B) 	because 	the
serial 	number 	on 	the 	firearm 	was 	obliterated. 	See 	PSR, 	ECF 	No.
30, at ¶ 46. 	During the sentencing hearing, upon the Government’s
motion, the Court dismissed Count Two. 	See Judgment, ECF No. 31.
The Court entered a judgment order on October 3, 2019. 	See id.
On 	November 	1, 	2022, 	Liseno, 	proceeding 	pro 	se, 	filed 	a
petition under 28 U.S.C. § 2255 (the “Petition”). 	See ECF No. 43.
In it, Liseno argues that his conviction and sentencing enhancement
are 	unconstitutional 	following 	New 	York 	State 	Rifle 	& 	Pistol
Association, 	Inc. 	v. 	Bruen, 	597 	U.S. 	1 	(2022). 	The 	Petition 	was
fully briefed. 	See ECF Nos. 55, 56.
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 3 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
4
II. 	REPORT AND RECOMMENDATION
On 	July 	21, 	2023, 	the 	Magistrate 	Judge 	entered 	a 	Report 	and
Recommendation 	(“R&R”) 	on 	the 	Petition. 	In 	it, 	the 	Magistrate
Judge 	found 	that 	Liseno, 	in 	his 	plea 	agreement, 	waived 	his 	right
to file the Petition. 	Assuming arguendo that Liseno did not waive
his right file the Petition, the Magistrate Judge also found that
the Petition was untimely. 	The Magistrate Judge recommended that
the Court deny the Petition and dismiss it with prejudice.
The R&R informed the parties that they had fourteen (14) days
from 	the 	date 	of 	service 	of 	the 	R&R 	to 	file 	“specific 	written
objections, 	identifying 	the 	portions 	of 	the 	Report 	and
Recommendation 	to 	which 	objection 	is 	made, 	and 	the 	basis 	of 	such
objection.” 	R&R, 	ECF 	No. 	57, 	at 	8. 	It 	further 	warned 	them 	that
the 	“[f]ailure 	to 	file 	written 	objections . . . shall 	constitute
a 	waiver 	of 	de 	novo 	review 	by 	the 	District 	Court 	and 	a 	waiver 	of
appellate 	review 	by 	the 	Circuit 	Court 	of 	Appeals.” 	Id. 	On 	July
31, 2023, Liseno filed objections to the R&R. 	See ECF No. 58.
III. OBJECTIONS
When reviewing a magistrate judge’s R&R, the Court must review
de 	novo 	only 	the 	portions 	to 	which 	an 	objection 	has 	been 	timely
made. 	28 U.S.C. § 636(b)(1)(C). 	Otherwise, “the Court may adopt,
without 	explanation, 	any 	of 	the 	magistrate 	judge’s
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 4 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
5
recommendations” to which there are no objections. 	Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby 	v. 	Davis, 	718 	F.2d 	198, 	199 	(4th 	Cir. 	1983)). 	Courts 	will
uphold portions of a recommendation to which no objection has been
made 	unless 	they 	are 	clearly 	erroneous. 	See 	Diamond 	v. 	Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). 	Given
the extensive nature of Liseno’s objections, the Court will conduct
a de novo review of the R&R.
IV. 	DISCUSSION
As 	discussed 	below, 	the 	Court 	agrees 	with 	the 	Magistrate
Judge’s 	conclusions 	that 	Liseno 	waived 	his 	right 	to 	file 	the
Petition, and even if he did not, the Petition is untimely.
A. 	Liseno waived his right to bring a collateral attack.
“[A] 	waiver-of-appeal-rights 	provision 	in 	a 	valid 	plea
agreement 	is 	enforceable 	against 	the 	defendant 	so 	long 	as 	it 	is
the result of a knowing and intelligent decision to forgo the right
to 	appeal.” 	United 	States 	v. 	Attar, 	38 	F.3d 	727, 	731 	(4th 	Cir.
1994) 	(citations 	and 	internal 	quotation 	marks 	omitted). 	To
determine whether a waiver is knowing and intelligent, courts look
at 	“the 	particular 	facts 	and 	circumstances 	surrounding 	[its
making], including the background, experience, and conduct of the
accused.” 	Id. 	(citation 	omitted). 	The 	United 	States 	Court 	of
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 5 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
6
Appeals 	for 	the 	Fourth 	Circuit 	does 	not 	distinguish 	between 	the
enforceability 	of 	a 	waiver 	of 	direct 	appeal 	rights 	and 	the
enforceability 	of 	a 	waiver 	of 	collateral-attack 	rights 	in 	a 	plea
agreement. 	See United States v. Lemaster, 403 F.3d 216, 220 (4th
Cir. 	2005). 	Accordingly, 	a 	waiver 	of 	the 	right 	to 	file 	a
collateral 	attack 	is 	valid 	“so 	long 	as 	the 	waiver 	is 	knowing 	and
voluntary.” 	Id.
First, Liseno’s guilty plea was knowing and intelligent, and
his 	waiver 	of 	appellate 	rights 	was 	knowing 	and 	voluntary. 	The
Magistrate 	Judge 	held 	a 	Rule 	11 	hearing 	on 	May 	3, 	2019. 	At 	the
hearing, 	Liseno 	was 	represented 	by 	counsel, 	and 	he 	was 	sworn 	in.
See Change of Plea Order, ECF No. 26, at 1. 	The Magistrate Judge
informed 	Liseno 	of 	his 	rights 	and 	the 	waiver 	of 	those 	rights 	in
the 	plea 	agreement. 	See 	id. 	at 	2. 	The 	Magistrate 	Judge 	found
Liseno’s 	plea 	to 	be 	knowing 	and 	voluntary. 	See 	id. 	at 	4. 	Based
on 	the 	particular 	facts 	and 	circumstances 	surrounding 	Liseno’s
waiver, the Court finds that his waiver was knowing and voluntary.
Second, 	Liseno 	waived 	his 	right 	to 	file 	the 	Petition. 	As
discussed, 	in 	Liseno’s 	plea 	agreement, 	he 	waived 	the 	right 	to
“challenge 	the 	conviction 	or 	the 	sentence 	which 	is 	within 	the
maximum 	provided 	in 	the 	statute 	of 	conviction 	or 	the 	manner 	in
which 	it 	was 	determined 	in 	any 	post-conviction 	proceeding,
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 6 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
7
including 	any 	proceeding 	under 	28 	U.S.C. 	§ 2255.” 	Plea 	Ag., 	ECF
No. 	25, 	at 	¶ 	10. 	In 	the 	Petition, 	Liseno 	does 	not 	allege
ineffective 	assistance 	of 	counsel 	or 	prosecutorial 	misconduct,
which are the only claims exempted in the waiver. 	Rather, Liseno
challenges the constitutionality of his conviction and sentencing
enhancement. 	Because 	Liseno 	expressly 	waived 	the 	ability 	to 	do
so, his Petition is denied.
B. 	Even 	if 	Liseno 	had 	not 	waived 	his 	rights, 	his 	Petition
is untimely.
Even if Liseno had not waived his right to file the Petition,
the 	Petition 	is 	nevertheless 	untimely. 	A 	one-year 	statute 	of
limitations applies for petitions under 28 U.S.C. § 2255:
(f) 	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 becomes final;
(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
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 7 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
8
(4) 	the 	date 	on 	which 	the 	facts 	supporting
the claim or claims presented could have been
discovered 	through 	the 	exercise 	of 	due
diligence.
28 U.S.C. § 2255(f). 	Liseno’s conviction became final on October
17, 	2019, 	and 	he 	filed 	the 	Petition 	on 	November 	1, 	2022. 	Liseno
argues 	that 	the 	statute 	of 	limitations 	began 	to 	run 	on 	June 	23,
2022, 	when 	the 	Bruen 	decision 	was 	issued, 	pursuant 	to 	28 	U.S.C.
§ 2255(f)(3). 	The Court disagrees.
Liseno 	challenges 	the 	constitutionality 	of 	his 	conviction
under 18 U.S.C. § 922(g)(1). 	For 28 U.S.C. § 2255(f)(3) to apply,
the 	“right 	asserted” 	must 	have 	been 	“recognized 	by 	the 	Supreme
Court.” 	The 	right 	asserted 	by 	Liseno, 	however, 	does 	not 	exist.
Regardless 	of 	whether 	he 	is 	asserting 	a 	facial 	or 	an 	as-applied
challenge, 	the 	challenge 	fails. 	On 	December 	6, 	2024, 	the 	Fourth
Circuit 	found 	that 	§ 	922(g)(1) 	remains 	facially 	constitutional
after Bruen and United States v. Rahimi, 602 U.S. 680 (2024). 	See
United 	States 	v. 	Canada, 	123 	F.4th 	159, 	162 	(4th 	Cir. 	2024). 	On
December 	18, 	2024, 	the 	Fourth 	Circuit 	found 	that 	its 	decision 	in
Hamilton 	remains 	binding 	precedent, 	and 	a 	person 	who 	has 	been
convicted of a felony cannot make a successful as-applied challenge
to 	§ 	922(g)(1) 	“unless 	the 	felony 	conviction 	is 	pardoned 	or 	the
law defining the crime of conviction is found unconstitutional or
otherwise 	unlawful.” 	United 	States 	v. 	Hunt, 	123 	F.4th 	697, 	700
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 8 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
9
(4th 	Cir. 	2024) 	(citing 	Hamilton 	v. 	Pallozzi, 	848 	F.3d 	614, 	626
(4th Cir. 2017)). 	In the alternative, the court found that section
922(g)(1) 	“would 	survive 	Second 	Amendment 	scrutiny 	even 	if 	[the
court] 	had 	the 	authority 	to 	decide 	the 	issue 	anew.” 	Id.
Accordingly, 	Bruen 	did 	not 	recognize 	a 	right 	for 	Liseno 	with
respect to his conviction.
Liseno 	also 	argues 	that 	U.S.S.G. 	§ 	2K2.1(b)(4)(B), 	which
serves 	the 	same 	purpose 	as 	18 	U.S.C. 	§ 	922(k), 2 	is
unconstitutional. 	The Fourth Circuit, however, has held that Bruen
did not make 18 U.S.C. § 922(k) facially unconstitutional. 3 	United
States v. Price, 111 F.4th 392, 397 (4th Cir. 2024), cert. denied,
145 	S. 	Ct. 	1891 	(Mar. 	31, 	2025). 	Liseno 	has 	not 	shown 	that 	the
Supreme Court recognized a new right with respect to his conviction
or 	his 	enhancement 	for 	an 	obliterated 	serial 	number. 	Even 	if 	he
had 	made 	such 	a 	showing, 	he 	has 	not 	shown 	that 	the 	decision 	was
made 	retroactively 	applicable 	to 	cases 	on 	collateral 	review.
Pursuant 	to 	28 	U.S.C. 	§ 	2155(f)(1), 	the 	statute 	of 	limitations
2 Pursuant to 18 U.S.C. § 922(k), “It shall be unlawful for any person knowingly
to transport, ship, or receive, in interstate or foreign commerce, any firearm
which 	has 	had 	the 	importer’s 	or 	manufacturer’s 	serial 	number 	removed,
obliterated, or altered or to possess or receive any firearm which has had the
importer's or manufacturer’s serial number removed, obliterated, or altered and
has, 	at 	any 	time, 	been 	shipped 	or 	transported 	in 	interstate 	or 	foreign
commerce.”
3 In reaching its decision, the Fourth Circuit reversed and remanded the district
court’s decision. 	Liseno relies heavily on the district court’s decision.
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 9 of 11 PageID #:
<pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
10
began to run on October 17, 2019 — when the judgment of conviction
became 	final. 	Liseno 	did 	not 	file 	the 	Petition 	within 	one 	year.
Accordingly, the Petition is additionally dismissed as untimely.
V. 	CONCLUSION
For the reasons discussed, the Court ORDERS as follows:
x 	The R&R is ADOPTED [ECF No. 57 in 2:19-CR-11;
ECF No. 4 in 2:22-CV-16];
x 	Liseno’s 	objections 	are 	OVERRULED 	[ECF 	No.
58];
x 	The 	Petition 	is 	DENIED 	and 	DISMISSED 	with
prejudice 	[ECF 	No. 	43 	in 	2:19-CR-11; 	ECF 	No.
1 in 2:22-CV-16];
x 	Case 	No. 	2:22-CV-16 	is 	DISMISSED 	WITH
PREJUDICE and STRICKEN from the Court’s active
docket; and
x 	The 	Clerk 	SHALL 	enter 	a 	separate 	judgment
order 	in 	favor 	of 	the 	United 	States 	in
2:22-CV-16.
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	§ 	2255
Proceedings, the district court “must issue or deny a certificate
of 	appealability 	when 	it 	enters 	a 	final 	order 	adverse 	to 	the
applicant.” 	“If 	the 	Court 	denies 	a 	certificate, 	the 	parties 	may
not appeal the denial but may seek a certificate from the court of
appeals 	under 	Federal 	Rule 	of 	Appellate 	Procedure 	22.” 	Id. 	The
Court 	finds 	it 	inappropriate 	to 	issue 	a 	certificate 	of
appealability 	in 	this 	matter 	because 	Liseno 	has 	not 	made 	a
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 10 of 11 PageID
#: <pageID>

CARMEN LISENO 	2:19-CR-11, 2:22-CV-16
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
11
“substantial 	showing 	of 	the 	denial 	of 	a 	constitutional 	right.”
See 28 U.S.C. § 2253(c)(2). 	The Court, therefore, DENIES issuing
a certificate of appealability.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion 	and 	Order 	to 	counsel 	of 	record 	by 	email 	and 	to 	Liseno 	by
certified mail, return receipt requested.
DATED: January 21, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
Case 2:19-cr-00011-TSK-MJA Document 62 Filed 01/21/26 Page 11 of 11 PageID
#: <pageID>