UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 29, 2007
UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
JOSE FLORES-VASQUEZ, DEFENDANT/PETITIONER.
The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING PETITION 28 U.S.C. § 2255 FOR WRIT OF HABEAS CORPUS PURSUANT TO
Before the Court is Petitioner Jose Flores-Vasquez's ("Petitioner") Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2255. [Doc. No. 37.] "A prisoner in custody under sentence of a court . . . claiming . . . that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255. For the reasons set forth below, the Court DENIES the Petition.
On March 9, 2005, Petitioner, a citizen of Mexico, attempted to enter the United States by crossing the border fence and hiding in brush near the Calexico, California Port of Entry. (Gov't Resp. Ex. A at 2; Rep.'s Tr. of Disposition Hearing at 13.) Defendant had previously been deported and removed from the United States on October 1, 2004, and January 6, 2005, after receiving a felony conviction on June 21, 2001, for committing an assault on a person with a firearm. (Gov't Resp. Ex. A at 3.) At the time Petitioner attempted to enter the United States, he had not received permission to return to the United States from the Secretary of the Department of Homeland Security or his designated successor. (Id.)
On March 1, 2006, pursuant to a plea agreement, Petitioner pled guilty to a violation of 8 U.S.C. § 1326, felony attempted entry after deportation. (Id. at 2.) At the disposition hearing, Petitioner stated that he signed the plea agreement after having it explained to him in Spanish and after reading it in its entirety. (Rep.'s Tr. of Disposition at 7.) Petitioner also stated that he understood that the Court, and not the attorneys, would decide his sentence. (Id. at 19.) When asked by the Court whether anyone had made any prediction, prophecy, or promise to him regarding his sentence, Petitioner responded "No." (Id. at 20.) Petitioner's counsel stated that he did not make any promises or representations to Petitioner regarding his sentence. (Id. at 21.)
The plea agreement provided that the violation of 8 U.S.C. § 1326 carried a maximum penalty of twenty years in prison. (Gov't Resp. Ex. A at 3.) The plea agreement also provided that Petitioner waived his right to appeal or collaterally attack the conviction or sentence unless the Court imposed a custodial sentence greater than the high end of the guideline range recommended by the Government. (Id. at 8.) On May 24, 2006, the Court sentenced Petitioner to 51 months in custody. [Doc. No. 35.]
Petitioner asserts two ineffective assistance of counsel claims in his Petition: (1) his attorney told him he would receive no more than 30 months in custody; and (2) his attorney failed to raise the argument that he never "entered" the United States by definition of law. (Pet. at 5.) In opposition, the Government asserts that Petitioner's claims are barred because he waived his right to collateral attack as part of his plea agreement. (Gov't Resp. at 3.) The Government also argues that Petitioner's claim that his attorney guaranteed him a sentence of 30 months or less is directly contradicted by the transcript of Petitioner's disposition hearing. (Id. at 4.) The government further argues that Petitioner's argument that he never "entered" the United States is meritless because Petitioner was charged with attempted illegal re-entry after deportation, rather than actual entry. (Id. at 5.) As of this date, Petitioner has not filed a traverse.
I. Waiver of Right to Collateral Attack
The Government argues that because Petitioner was sentenced within the guideline range recommended by the Government, the plea agreement signed by Petitioner prohibits him from appealing or collaterally attacking his conviction and sentence. (Id. at 3.) A defendant's knowing and voluntary waiver of his right to collaterally attack his sentence pursuant to a plea agreement is upheld where all of the conditions of the terms of the plea agreement have been met. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996). However, a plea agreement containing a waiver of the right to collaterally attack the conviction or sentence does not foreclose a defendant from bringing a Section 2255 petition based on claims of ineffective assistance of counsel. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Here, Petitioner challenges his sentence based on ineffective assistance of counsel. The Court FINDS that the plea agreement does not bar Petitioner from collaterally attacking his conviction because ineffective assistance of counsel claims are not foreclosed by waiver. See Abarca, 985 F.2d at 1014.
II. Petitioner's Claim that Counsel Improperly Advised Him as to the Potential Length of His Sentence
Petitioner asserts that his counsel was ineffective for advising him that he would receive no more than 30 months in custody. (See Pet. at 5.) A claim of ineffective assistance of counsel used to attack the validity of a guilty plea may be sustained "where the petitioner establishes that the ineffective performance 'affected the outcome of the plea process . . . [such] that absent the erroneous advice, he would have insisted on going to trial.' " Baramdyka, 95 F.3d at 844 (quoting Hill v. Lockhart, 474 U.S. 52, 58, (1985)).
At the disposition hearing, the Court asked Petitioner whether he had been advised as to the maximum sentence he could receive as a result of his guilty plea:
THE COURT: What's the maximum possible punishment you could receive as a result of your plea of guilty?
THE DEFENDANT: That I don't know.
THE COURT: Well, your attorney indicated the maximum possible punishment is 20 years. Do you understand that, Sir?
THE COURT: Yes.
(Rep.'s Tr. of Disposition at 19.) The Court also asked Petitioner whether he understood that the Court, and not the attorneys, would decide Petitioner's sentence:
THE COURT: Other than what's in this Plea Agreement, has anyone made any promises to you in order to get you to plead guilty?
THE DEFENDANT: No.
THE COURT: You understand that I, as trial judge, not the attorneys, will decide what the appropriate sentence in your case will be?
THE DEFENDANT: Yes, I understand, your honor.
(Rep.'s Tr. of Disposition at 19.) Additionally, the Court inquired as to whether anyone had made any promises to Petitioner regarding his sentence:
THE COURT: Has anyone made any prediction, prophecy or promise to you as to what your sentence in this case will be?
THE DEFENDANT: No.
(Id. at 20-21.) Finally, the Court asked Petitioner's attorney whether he had made any promises to Petitioner regarding his sentence:
THE COURT: Other than what you stated on the record and what's contained in the plea agreement, have you made any promises or representations to your client about what the sentence will be?
MR. BACHO: No, your honor.
(Id. at 21.)
Petitioner's contention that his attorney advised him that he would receive no more than 30 months is directly controverted by the statements Petitioner and his attorney made at the disposition hearing. After examining the record of the disposition hearing, it is apparent that Petitioner understood that only the Court could decide what the appropriate sentence in Petitioner's case would be. There is no indication that "absent [counsel's] erroneous advice, [Petitioner] would have insisted on going to trial." See Baramdyka, 95 F.3d at 844. The thus Court DENIES Petitioner's first claim of ineffective assistance of counsel because the record shows that no one made any prediction, prophecy or promise to Petitioner as to what his sentence would be.
III. Petitioner's Claim that Counsel Failed to Raise the Argument that Petitioner Had Not Actually "Entered" the United States
Petitioner asserts that his counsel was ineffective for failing to raise the argument that Petitioner never "entered" the United States. (See Pet. at 5.) Specifically, Petitioner asserts that " 'Enter' means more than merely crossing the border." (Id.) In opposition, the Government notes that Petitioner was charged with attempted illegal re-entry after deportation, not actual illegal entry. (Gov't Resp. at 5.) According to the Government, the fact that Petitioner was apprehended immediately after his attempted entry into the United States has no mitigating effect on his conviction.
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish each of two prongs: (1) counsel's performance fell below an objective standard of reasonableness under prevailing norms of practice, and (2) counsel's performance was prejudicial to the petitioner's case. See Strickland v. Washington, 466 U.S. 668, 686 (1994). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989).
Under 8 U.S.C. § 1326, attempted re-entry occurs "when a previously deported alien 'makes an effort' or 'tries' to re-enter the United States." United States v. Leos Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002) (quoting United States v. Corrales-Beltran, 192 F.3d 1311, 1319 (9th Cir. 1999)). "It is the act of crossing the boundary line into the United States." Corrales-Beltran, 192 F.3d at 1319.
In this case, Petitioner cannot establish the first part of the Strickland test. The performance of Petitioner's counsel did not fall below an objective standard of reasonableness. It would have been fruitless for Petitioner's counsel to argue that Petitioner had not entered the United States for purposes of 8 U.S.C. § 1326 because it is clear that Petitioner crossed the border. The factual basis admitted to by Petitioner in the plea agreement states that Petitioner crossed the border fence between Mexico and the United States and hid in brush near the Calexico Port of Entry. (Gov't Resp. Ex. A at 2.) Petitioner admitted at his disposition hearing that he knowingly and intentionally attempted to enter the United States by crossing the border fence and hiding in brush near the Calexico Port of Entry. (Rep.'s Tr. of Disposition Hearing at 13.) Nothing in the statute or in the Ninth Circuit's case law suggests that such actions do not constitute an attempt to enter. Counsel's failure to raise the meritless legal argument that Petitioner did not actually enter the United States does not constitute ineffective assistance of counsel. See Shah, 878 F.2d at 1162. The Court thus DENIES Petitioner's second claim of ineffective assistance of counsel
For the reasons stated above, the Court DENIES Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255.
IT IS SO ORDERED.
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