IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
October 4, 2005
JOSE LUIS VALENZUELA VEGA, MOVANT,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS MOVANT'S § 2255 MOTION
Movant Jose Luis Valenzuela Vega, a federal prisoner currently incarcerated at California City Correctional Institute in California City, California, filed a document titled, "Motion to Vacate Void Judgment," which the Court construes to be a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Respondent the United States has filed a motion to dismiss. Movant has not filed an opposition to Respondent's motion. Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion to dismiss.
On October 1, 2002, a criminal complaint charged Movant with Illegal Re-entry Following Deportation, in violation of 8 U.S.C. § 1326. Resp.'s Ex. A, Criminal Complaint; Docket no. 1. On January 16, 2003, a grand jury indicted Movant for violation of 8 U.S.C. § 1326. Resp.'s Ex. C, Indictment; Docket no. 7. On October 30, 2003, Movant was arraigned on a superseding information charging two felony counts of Illegal Entry, in violation of 8 U.S.C. § 1325. Resp.'s Ex. D, Superseding Information; Docket no. 19. On the same date, Movant signed and filed a waiver of indictment. Docket no. 20.
On November 3, 2003, Movant entered a guilty plea to the two-count superseding information and was sentenced pursuant to the plea agreement. Resp.'s Supp. Ex. A, Plea Agreement; Docket no. 20. In the plea agreement, pursuant to Federal Rules of Criminal Procedure 11(c)(1)(C), Movant and the United States agreed the appropriate sentence in the case would be two years in prison for each count to run consecutively, one year supervised release and $200 special assessment. Resp.'s Supp. Ex. A, Plea Agreement ¶ 9. Movant also agreed he would not file any collateral attack on his conviction or sentence pursuant to 28 U.S.C. § 2255, unless he was claiming that his constitutional right to effective assistance of counsel had been violated. Id. ¶ 5. Movant was sentenced pursuant to the plea agreement and judgment was entered on November 7, 2003. Resp.'s Ex. E, Judgment; Docket no. 23.
On May 6, 2005, Movant pro se filed this motion seeking relief from his sentence pursuant to 28 U.S.C. § 2255. Amidst a great deal of irrelevant material, Movant raises two arguments in support of his motion: (1) the criminal complaint was not "signed and sworn to by an Injured Party/Victim"; and (2) he was not indicted by a grand jury. Motion at 5. On June 20, 2005, Respondent filed a motion to dismiss the action on the grounds that (1) the action was filed outside the one-year statute of limitation prescribed by 28 U.S.C. § 2255; and (2) there is no merit to Movant's allegations that criminal complaint was not "signed and sworn to" and that he was not indicted by a grand jury. On August 16, 2005, Respondent filed a supplemental motion to dismiss the action on the additional ground that the plea agreement precludes Movant from bringing an action under 28 U.S.C. § 2255, unless it is based on ineffective assistance of counsel.
I. Legal Standard
A prisoner, in custody under sentence of a federal court, making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the court which imposed the sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Section 2255 was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Addonizio, 442 U.S. 178, 185 (1979). Under 28 U.S.C. § 2255, a federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
In reviewing a § 2255 motion, a federal court shall hold an evidentiary hearing "unless 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. The motion must provide specific factual allegations which, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
II. Statute of Limitations
Respondent argues that Movant cannot bring this § 2255 motion because it was filed outside the one-year statute of limitations. A motion to vacate, set aside or correct a federal sentence under § 2255 must be filed within one year of the latest of the date on which: (1) the judgment of conviction became final; (2) an impediment to making a motion created by governmental action was removed, if such action prevented the petitioner from making a motion; (3) the right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255; United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004).
Because Movant's conviction became final on November 7, 2003, his motion to vacate his sentence, filed on May 6, 2005, was submitted more than one year after the final judgment. Movant does not allege that there was any impediment created by governmental action to making his current motion. He does not rely upon a newly recognized right or newly discovered facts. Rather, Movant makes meritless claims that the criminal complaint was not "signed and sworn to," although it was, and that he was not indicted by a grand jury, although he waived indictment on the reduced charges to which he plead guilty pursuant to the plea agreement. Therefore, Respondent's motion to dismiss Movant's § 2255 motion is granted. As discussed below, Respondent's supplemental motion to dismiss the action on an additional ground is also granted.
Respondent also argues that Movant cannot bring this § 2255 motion because in the plea agreement he expressly waived his right to attack his sentence collaterally, except for an ineffective assistance of counsel claim.
A defendant may waive the statutory rights to file an appeal or to bring a § 2255 motion. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). To be enforceable, the waiver must be knowing and voluntary, id., and the language of the waiver must specify that the waiver encompasses the claim that the defendant is bringing in the appeal or the § 2255 motion, United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir. 1998) (addressing waiver of appeal). In United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000), the defendant appealed his sentence although he had signed a plea agreement containing the provision that he "knowingly and voluntarily waives" his "right to appeal any sentence imposed by the court." The court found the plain language of this waiver to be clear and unambiguous. Id.
In his plea agreement, Movant agreed as follows: "I agree not to file any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. § 2255, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated." Resp.'s Supp. Ex. A, Plea Agreement ¶ 5. The plain language of Movant's waiver of his right to pursue a collateral attack on his judgment pursuant to 28 U.S.C. § 2255, for any claim other than a claim for ineffective assistance of counsel, is clear and unambiguous.
In addition, the plea agreement contains a section titled, "The Defendants' Affirmations," which indicates that Movant had adequate time to discuss the case, the evidence, and the plea agreement with his attorney and that his attorney had provided him with all the legal advice that he requested. Id. ¶ 17. In the plea agreement, Movant also indicated that he knew what the charges and possible defenses were, and the consequences of proceeding to trial. Id. ¶ 19. Movant confirmed that he voluntarily entered into the plea agreement. Id. He also indicated that he was "not under the influence of any alcohol, drug, or medicine" while he considered signing the plea agreement and at the time he signed it. Id. ¶ 18. Accordingly, the Court concludes that Movant's waiver was knowing and voluntary.
Because the language of the plea agreement is clear and unambiguous and because his waiver was knowingly and voluntarily made, Movant's waiver of his right to file a § 2255 motion is enforceable with respect to any claim other than one for ineffective assistance of counsel. Movant's action does not allege ineffective assistance of counsel. Therefore Movant is precluded from bringing an action under 28 U.S.C. § 2255.
For the foregoing reasons, Respondent's motion to dismiss Movant's § 2255 motion is GRANTED. The Clerk shall close the file.
IT IS SO ORDERED.
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