The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE
Defendant, a prisoner in federal custody proceeding pro se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence ("Motion") following his guilty plea and sentencing in Criminal Case No. 04cr2612-L. The government filed a response, and Defendant filed a reply. The Motion is DENIED and this case is DISMISSED WITH PREJUDICE because Defendant's allegations fail to establish ineffective assistance of counsel with respect to the Plea Agreement, and the express terms of the Plea Agreement waiving Defendant's right to bring the Motion are enforceable.
Defendant was represented by counsel throughout his criminal case. On December 13, 2004, Defendant waived indictment and pled guilty to the charges in the Superseding Information, filed the same day. He requested immediate sentencing, waived his right to the presentence report, and appeared in court to enter his guilty plea and receive a sentence.
In exchange for the dismissal of the Indictment for violation of 8 U.S.C. § 1326, Defendant agreed to plead guilty to the Superseding Information, and waived his right to trial, appeal and collateral attack on the judgment and sentence. (Plea Agreement ¶¶ I, IV & XI.) The Indictment charged Defendant with one felony violation of 8 U.S.C. § 1326 on September 10, 2004. Since Defendant was removed after he had been convicted in state court of an aggravated felony (possession of a controlled substance for sale), he faced a maximum statutory sentence of up to twenty years in custody. See 8 U.S.C. § 1326(b)(2). The Superseding Information charged Defendant with a misdemeanor count of unlawfully entering or attempting to enter the United States in violation of 8 U.S.C. § 1325 in October 2002, and two felony counts of the same violation on September 5 and 10, 2004. The misdemeanor count carried a maximum term of six months in custody. (Reporter's Tr. of Proceedings, Disposition/Sentencing Hearing, 12/13/04 ("TR") at 5; see also Plea Agreement ¶ III.) The two felony counts each carried a maximum term of two years in custody. (TR at 5; see also Plea Agreement ¶ III.).
Following the terms of the Plea Agreement, the court sentenced Defendant to six months in custody for count one, two years in custody for count two, and two years in custody for count three. The two felony sentences were to run consecutively, while the misdemeanor sentence was to run concurrently. (TR at 12-14.) This resulted in a 48-month custodial sentence.
Defendant initially raised three arguments in support of his Motion, all of which are based on ineffective assistance of counsel: (1) "lack of adequate translation of the charges and the sentence received due to the fact that the defendant did not understand English;" (2) failure to argue at sentencing that all counts be grouped as one harm and by failing to "cover & translate the meaning of grouping;" and (3) providing "incorrect sentencing information causing the court to give defendant an illegal sentence." (Mot. at 5.) Since Defendants' waiver was valid and enforceable, his initial arguments are rejected.
In the Plea Agreement, Defendant waived certain constitutional and statutory rights, including his right to appeal or collaterally attack his conviction and sentence:
In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, . . ..
(Plea Agreement ¶ XI (emphasis added).) "A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). Accordingly, a plea agreement that waives the right to appeal or collaterally attack the conviction and sentence is unenforceable with respect to ineffective assistance of counsel claims to the extent they challenge the voluntariness of the waiver. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005).
Defendant claims, among other things, that his waiver was not knowing because he did not understand English. This claim is refuted by the record. At the disposition and sentencing hearing, the court informed Defendant of the factual basis for the Plea Agreement and its terms, including the nature of pending charges, the maximum penalties associated with them, the rights Defendant was waiving, including the rights associated with challenging the conviction and sentence imposed, and that the court was not bound to follow the terms of the agreement at sentencing. (RT at 2-12.) A certified interpreter was present at the hearing. (Id. at 2.) Defendant was asked and expressly affirmed that the Plea Agreement was read to him in Spanish, his attorney had gone over it with him paragraph by paragraph, Defendant understood it, and had no questions about it at the hearing. (Id. at 6-7.) Consistent with Defendant's representations in court, the Plea Agreement states that "[b]y signing this plea agreement, defendant certifies that defendant has read it (or that it has been read to defendant in defendant's native language). Defendant has discussed the terms of this plea agreement with defense counsel and fully understands its meaning and effect." (Plea Agreement ¶ XV.) Defendant initialed the Plea Agreement at the bottom of each page and signed it at the end. The record therefore shows that the terms of the agreement were translated into Defendant's native language twice, explained to him by his counsel paragraph by paragraph, and summarized by the court at the haring.
The remaining arguments Defendant raised in the Motion concern the defense counsel's performance at sentencing, rather than his performance in advising Defendant prior to entering into the Plea Agreement. Those arguments therefore do not address the voluntariness of the waiver, and have been waived. See Lampert, 422 F.3d at 871; Jeronimo, 398 F.3d at 1153.
In his Reply, Defendant raised new ineffective assistance arguments attacking the defense counsel's performance prior to signing the Plea Agreement. Those arguments seek to attack the voluntariness of the waiver, and are therefore addressed in detail below.
To prevail on any of his ineffective assistance claims, Defendant must show his counsel committed "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically, Defendant must show "counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.
Defendant claims his counsel's performance was deficient in four instances: (1) failure to argue the Indictment and the Superseding Information were legally insufficient; (2) failure to preclude Defendant from pleading guilty to offenses he did not commit; (3) failure to argue that section 1326 is unconstitutionally vague; and (4) failure to group the offenses. Judicial scrutiny of counsel's performance is "highly deferential." Strickland, 466 U.S. at 689. There is a "strong presumption that a counsel's conduct falls within a wide range of ...