The opinion of the court was delivered by: Rhoades, Senior District Judge.
AMENDED ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR
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
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.
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
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
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
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
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.)
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
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
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
defendant knowingly and voluntarily entered the plea agreement, yet still
proceeding to determine whether the district court complied with Rule
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 ...