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January 25, 1999


The opinion of the court was delivered by: Rhoades, Senior District Judge.


I. Overview

Petitioner John M. Racich has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Court denied the motion in an order dated August 26, 1998. The Court now amends the original order, nunc pro tunc, in order to correct several citation errors.*fn1

II. Background

A. Factual Background

The facts of this case began in Mexico. On the night of November 3, 1992, a Mexican police officer named Javier Ojeda stopped Petitioner. The officer observed that Petitioner was wearing an empty holster. The officer searched Petitioner's truck and found a Glock 10 millimeter pistol underneath the seat.

Petitioner's troubles increased when two other Mexican police officers arrived, one of whom toted a submachine gun. At some point, the subject of a mordida (bribe) arose, and Petitioner gave the officers $1480 to secure his release. The officers released Petitioner, but refused to return his gun until Petitioner went to the United States, got more money, and gave the money to the officers.

At approximately 6:50 a.m. on November 4, 1992, Petitioner returned to the United States through the San Ysidro port of entry. Petitioner told a customs inspector that he had just been "ripped off." Petitioner asked twice if he could use the inspector's gun to shoot the Mexican police officers. The inspector refused, but admitted Petitioner into the United States.

Petitioner then hatched an elaborate plan: He went to a 7-11 store in Chula Vista, California and withdrew money from an automatic teller machine. He then bought Gatorade, a large cup of coffee, and a cigarette lighter. He emptied the Gatorade bottle and coffee cup.

Petitioner took further steps. He went to a gas station across the street and filled the coffee cup, the Gatorade bottle, and a beer bottle with gasoline. Using a paper towel and a sock, he fashioned wicks for the two bottles. Petitioner's labors yielded incendiary bombs, more commonly known as mobtov cocktails.

Petitioner's plan required his return to Mexico, where he met Officer Ojeda and another officer. Petitioner approached the police car as the officers sat in the car. As he approached, he pretended to drink from the gasoline-filled coffee cup. He then paid $300 to one of the officers, who returned Petitioner's gun.

At this point, Petitioner could have returned to the United States with his gun and put this entire episode behind him. Alas, Petitioner did not choose that path. Instead, he doused the two officers with gasoline and set them afire with the cigarette lighter.

Pandemonium ensued. Petitioner jumped into his truck and sped toward the border. Mexican officers pursued him, firing shots as he fled. Bullets hit inspection booths on the American side of the border.

In the end, Petitioner could run but he could not hide: He abandoned his truck in heavy traffic and was arrested, lighter in hand, after running past the inspection area into the United States.*fn2

B. Procedural History

On November 10, 1992, a federal grand jury indicted Petitioner for (1) unlawful exportation of defense articles, in violation of 22 U.S.C. § 2778; (2) unlawful manufacture of a firearm, in violation of 26 U.S.C. § 5822, 5861(1), and 5871; and (3) illegal importation of a firearm, in violation of 18 U.S.C. § 922 (l). The Republic of Mexico wanted to charge Petitioner with other crimes, and sought extradition.

The Court appointed attorney Gary Edwards to represent Petitioner. Petitioner and the government then entered into plea negotiations, which resulted in Petitioner tentatively accepting a plea offer. On August 2, 1993, during the resulting plea hearing, Petitioner said that he felt "woozy" due to medication he had taken. The Court discontinued the plea hearing.

To ascertain Petitioner's ability to enter a plea, and to schedule another plea hearing, the Court held a chambers conference two days later. Petitioner's attorney attended the conference, but Petitioner himself did not attend.

On August 26, 1993, Petitioner requested a change in counsel. The Court appointed Jerry Leahy as Petitioner's new attorney.

Petitioner rejected the government's initial plea offer, but with the assistance of his new attorney, he accepted a different offer several months later. On November 22, 1993, Petitioner pleaded guilty to count two (unlawful manufacture of a firearm), and the government withdrew the remaining counts. In the plea agreement, Petitioner expressly "waive[d] his right to appeal and his right to collaterally attack any proceedings in [the] case prior to the sentencing hearing." (Plea Agreement at 5.)

After a series of continuances, the Court scheduled the sentencing hearing for June 7, 1994. Less than a week before, Petitioner filed a motion to withdraw his plea. The Court denied the motion.

Under the United States Sentencing Guidelines, Petitioner faced 262 to 327 months in prison, but the statutory maximum was 120 months. The Court sentenced Petitioner to 120 months and three years of supervised release.

Petitioner appealed his sentence to the United States Court of Appeals for the Ninth Circuit. Petitioner also appealed the denial of his motion to withdraw his plea. The Ninth Circuit affirmed in both respects. See United States v. Racich, 53 F.3d 341, 1995 WL 257873 (9th Cir. 1995) (Reinhardt, Fernandez, and McKay, JJ.)

III. Discussion

On April 21, 1997, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, asking the Court to vacate his guilty plea. Petitioner argues that the Court should vacate his plea for four reasons. First, he argues that the Court violated Federal Rule of Criminal Procedure 11 in various ways. Second, he argues that he pleaded involuntarily because he had been denied medication, and therefore could not think clearly. Third, he argues that his attorney, Jerry Leahy, provided ineffective assistance in numerous respects. Fourth, Petitioner argues that the government breached the plea agreement.

The Court will address each of these arguments in turn.

A. Petitioner's Rule 11 Claims

The government attacks Petitioner's Rule 11 claims on three grounds. First, the government argues that Petitioner cannot raise Rule 11 claims because he expressly waived his right to attack the judgment collaterally. Second, the government argues that Petitioner cannot raise the issues now because he failed to raise them at an earlier proceeding. Third, the government argues that Petitioner's Rule 11 arguments fail on the merits.

1. Whether Petitioner's Waiver Bars His Rule 11 Claims

The government first argues that the Court should not entertain Petitioner's Rule 11 claims because he expressly waived his right to attack the judgment collaterally.

The right to attack a judgment collaterally is statutory. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). A knowing and voluntary waiver of a statutory right is enforceable. See id.; United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). For this reason, a prisoner may not collaterally attack a judgment if the prisoner waived the right to do so. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).

Despite these principles, a waiver does not bar certain types of claims. See generally United States v. Baramdyka, 95 F.3d 840 843 (9th Cir. 1996) (discussing various exceptions to the rule that waivers are enforceable), cert. denied, 520 U.S. 1132, 117 S.Ct 1282, 137 L.Ed.2d 357 (1997). The Court must decide whether a waiver can bar Rule 11 claims. This appears to be an issue of first impression. The Court concludes that a waiver cannot bar Rule 11 claims.

It is well settled that a waiver does not bar claims that relate to the validity of the waiver itself. See Abarca, 985 F.2d at 1014. A claim relates to the validity of the waiver if the claim relates to whether the defendant voluntarily entered into the agreement that contains the waiver. See United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (stating that "[w]aivers . . . must stand or fall with the agreements of which they are a part").

Rule 11 claims relate to concerns of voluntariness, and therefore relate to the validity of the waiver, because Rule 11 seeks "to ensure that a plea is made knowingly and voluntarily." United States v. Randel, 8 F.3d 1526, 1528 (10th Cir. 1993); see also United States v. Hekimain, 975 F.2d 1098, 1100 (5th Cir. 1992) (stating that two of the "core concerns" of Rule 11 are whether the guilty plea was coerced and whether the defendant understands the consequences of the plea). Rule 11 is the only judicial device focused on determining the voluntariness of guilty pleas. Thus, in § 2255 proceedings, if a court is to determine the voluntariness of a guilty plea, the court must determine whether Rule ll's dictates were followed. Therefore, because it is well-settled that prisoners may raise claims that implicate the validity of the waiver itself, it follows that prisoners may raise Rule 11 claims as well. Cf Wenger, 58 F.3d at 282 (stating that "[i]f the agreement is voluntary and taken in compliance with Rule 11, then the waiver . . . must be honored") (emphasis added); Navarro-Botello, 912 F.2d at 320-21 (finding that the defendant knowingly and voluntarily entered the plea agreement, yet still proceeding to determine whether the district court complied with Rule 11).

In addition, besides seeking to ensure the voluntariness of guilty pleas, Rule 11 has two other purposes. First, it protects the integrity of the courts. See United States v. Bruce, 976 F.2d 552, 554-58 (9th Cir. 1992).*fn3 If a defendant could waive Rule 11 protections, the defendant would also be waiving a protection intended for the courts. This is clearly an impermissible result.

Second, Rule 11 seeks to ensure judicial impartiality after plea negotiations are completed. See id. If a defendant could waive Rule 11 claims, he could undermine the court's role in determining the fairness of a plea agreement after negotiations are completed. The court's role would be meaningless if it were merely asked to rubber-stamp an agreement in which it participated.

For all the foregoing reasons, the Court holds that a plea agreement's waiver provision does not bar Rule 11 claims.

2. Whether Petitioner Procedurally Defaulted On His Rule 11 Claims

The Court must now consider the government's second attack on Petitioner's Rule 11 claims. The government argues that because Petitioner did not raise his arguments in an earlier proceeding, he cannot raise them now. In other words, the government argues that Petitioner procedurally defaulted on his Rule 11 arguments.

"[A] § 2255 petitioner [generally] cannot challenge nonconstitutional . . . errors if such errors were not challenged in an earlier proceeding." United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996), cert. denied, 520 U.S. 1269, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997).*fn4 Nevertheless, a prisoner may raise new issues if the prisoner shows good cause for not raising them earlier and prejudice from that failure. See id. at 1157. "Establishing the elements of an ineffective assistance of counsel claim normally will meet this cause and prejudice test." Id. (citing United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)). To establish an ineffective-assistance claim, Petitioner must establish (1) that "counsel's representation fell below an objective standard of reasonableness;" and (2) that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Petitioner argues that his attorney was ineffective for failing to raise the Rule 11 arguments on appeal. Petitioner has advanced no other reason for his failure to raise these issues earlier. Therefore, the question of whether Petitioner has procedurally defaulted on his Rule 11 claims turns on whether his attorney was ineffective for not raising the Rule 11 claims on appeal.

For two reasons, the Court finds that Petitioner's attorney did not act unreasonably by not raising the Rule 11 issues on appeal. First, the Court addresses the merits of the Rule 11 arguments below, and finds that they have no merit. Petitioner's attorney did not act unreasonably by not raising meritless arguments.

Second, even assuming that Petitioner's Rule 11 claims had merit, his attorney did not act unreasonably by not raising them on appeal because the plea agreement's waiver provision ostensibly barred him from doing so. The waiver in Petitioner's plea agreement is as express as they come. Petitioner agreed to "waive his right to appeal . . . any proceedings in [the] case prior to the sentencing hearing." (Plea Agreement at 5.) All of Petitioner's Rule 11 arguments relate to incidents prior to the sentencing hearing. Thus, the waiver seems to prohibit Petitioner from raising his Rule 11 claims.

Because Petitioner has failed to establish that his attorney acted unreasonably, he has failed to establish his ineffective-assistance claim. He therefore has failed to establish the requisite "cause" and "prejudice" that would excuse his procedural default. Accordingly, the Court finds that Petitioner has ...

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