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 ...