The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION BROUGHT PURSUANT TO 28 U.S.C. § 2255
Movant Michael Dehamm ("Dehamm") moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §2255 ("Motion"). Respondent United States of America opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the Motion is denied in its entirety. The Clerk of Court is instructed to close the file.
On February 19, 2003 Defendant Dehamm was indicted on a single court of manufacturing counterfeit obligations in violation of 18 U.S.C. §471. Dehamm was charged with falsely making, forging, counterfeiting, or altering United States $100 Federal Reserve Notes.
On February 4, 2003, San Diego Police Department ("S.D.P.D.") Detective Kenneth Nelson received a tip identifying Dehamm as a counterfeiter of Federal Reserve Notes. Detective Nelson conducted a records check and discovered that Dehamm had a probation compliance search waiver as a result of several state court convictions. Detective Nelson then obtained a picture of Dehamm and showed it to the informant; the informant identified Defendant as the counterfeiter.
Detective Nelson then contacted the United States Secret Service to report Dehamm's counterfeiting activities. After the informant positively identified Dehamm, Detective Nelson spoke with United States Secret Service ("U.S.S.S."). Later that morning, members of the U.S.S.S., S.D.P.D., California Department of Justice, and San Diego County Probation executed a probation compliance search waiver on Defendant's residence, located at 8953 Idyllwild Lane, San Diego.
When the agents arrived at Dehamm's residence, he was placed in handcuffs because of concerns regarding officer safety arising from Dehamm's earlier conviction for battery on a peace officer. During the search agents discovered counterfeit $100 bills and counterfeiting paraphernalia. Dehamm's car was also searched revealing additional counterfeiting equipment. Dehamm made several statements to officers while handcuffed in his home, while being transported to U.S.S.S. offices, and after receipt of the Miranda advisements at the U.S.S.S. offices.
On October 21, 2003 the court denied Dehamm's motions to suppress evidence and statements. On November 14, 2003 Defendant pled guilty to a conditional plea agreement, preserving for appeal the previously denied motions to suppress statements, suppress evidence, and dismiss the indictment for violation of the Speedy Trial Act. On May 5, 2004 Dehamm was sentenced to a term of incarceration of 30 months, followed by a three year term of supervised release. Dehamm pursued an appeal of the denial of his motions to suppress statements and evidence. On August 16, 2005 the Ninth Circuit affirmed this court's denial of the motions.
On October 24, 2006, Dehamm filed the present Motion arguing that (1) he did not validly consent to a Fourth Amendment search waiver as a condition of probation and therefore all evidence should have been suppressed; (2)the police officers failed to provide him with his Miranda advisements are therefore all statements should have been suppressed; and (3) his counsel failed to provide effective assistance of counsel in violation of his Fifth and Sixth Amendment rights.
Waiver of Right to Collaterally Attack Sentence
The Government argues that Dehamm waived his right to collaterally attack his sentence and therefore the Motion must be denied. The waiver provision contained in the Conditional Plea Agreement provided, in pertinent part, that Dehamm waived his right to collaterally attack the sentence unless the court imposes a custodial sentence greater than the high end of the guideline range (or statutory mandatory minimum term, if applicable) recommended by Defendant at the time of sentencing.
(Clerk's Record, "CR," 52 at p.8). At the time of sentencing, Defendant recommended a final Adjusted Offense Level of seven, a criminal history category of VI, with a corresponding Sentencing Guideline Range of 15-21 months. As the 30 month custodial sentence imposed on Dehamm exceeded the high end of the guideline range recommended by Defendant, the ...