The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are 1) Petitioner/Defendant's Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. # 22) and 2) Petitioner/Defendant's Motion for Immediate Deportation (Doc. # 21).
On October 11, 2006, a complaint was filed against Petitioner charging him importation of cocaine. Petitioner waived indictment and an information was filed charging him with importation of cocaine in violation of 21 U.S.C. §§ 952 and 960.
In November 2006, Petitioner entered a plea of guilty before this Court to the charge in the Information pursuant to a plea agreement. In the plea agreement, the Petitioner and Respondent jointly agreed to recommend a base offense level of 34 reduced to 31 for a role adjustment under § 2D1.1(a)(3); a two level reduction for safety valve, if applicable; a two level downward adjustment for minor role; a three level downward adjustment for acceptance of responsibility; and a two level downward departure for fast track resulting in a total offense level of 22. Paragraph eleven*fn1 of the plea agreement stated in part as follows: "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, including any restitution order, 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 the Government pursuant to this agreement at the time of sentencing. . . . If defendant believes the Government's recommendation is not in accord with this agreement, defendant will object at the time of sentencing; otherwise the objection will be deemed waived." (Doc. # 24-2, Exhibit B at 10.)
The Plea Agreement further stated "[i]f defendant is not a United States citizen or national, either before or immediately following sentencing, defendant agrees to an order of removal from the United States entered by Executive Office for Immigration Review or authorized Department of Homeland Security official. Defendant understands that defendant will not be removed until defendant has served any criminal sentence imposed in this and any other case." (Id.) At the plea hearing, the Defendant stated that he was not a United States citizen, that he was a citizen of Mexico, and that he understood that he will be deported to Mexico upon the completion of any custodial sentence that the court imposes. (Doc. # 24-2, Exhibit C at 9.)
Petitioner stated in open court at the plea hearing that he had reviewed and discussed the plea agreement paragraph by paragraph with his counsel prior to signing the agreement; that the plea agreement had been translated into the Spanish language for him at the time that he reviewed the agreement; and that he had no questions for the Court about any of the terms of the plea agreement. (Id. at 4.) Petitioner informed the Court that he understood that "if the Court follows the plea agreement, [he] may not appeal the sentence or later collaterally attack this sentence or judgment." (Id. at 10.) The Court found the defendant freely, voluntarily, and competently entered the plea; that Defendant understood the plea agreement, the charges against him, and the consequences of the plea; that there was a factual basis for the plea; and that the Defendant had knowingly and intelligently waived his rights. (Id. at 12.)
At the sentencing hearing, counsel for Petitioner informed that Court that he had reviewed the presentence report with the Petitioner. Counsel for the Government recommended sentencing guideline range of 41-51 months and a sentence of 41 month consistent with the plea agreement. The Court found a base offense level of 34 reduced to 31 for minor role; a two level reduction for safety valve; a two level downward adjustment for minor role; a three level downward adjustment for acceptance of responsibility; and a two level downward departure for fast track resulting in a guideline range of 41 to 51 months. The Court imposed a 41month sentence. Counsel for Petitioner informed the Court that the sentence complied with the plea agreement and that Petitioner had waived his right to appeal the sentence.
Petitioner did not file a direct appeal.
On August 31, 2007, Petitioner filed the Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody and Motion for Immediate Deportation pending before this Court.
28 U.S.C. §2255 provides:
A prisoner under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. ANALYSIS Petitioner moves the Court to vacate, set aside or correct his sentence on the grounds that his ineligibility for certain Bureau of Prisons programs based upon his citizenship and his designation to a privately run facility violates his rights under the Equal Protection Clause. Petitioner contends that his ineligibility for certain Bureau of Prisons programs based upon his citizenship increases his sentence and results in more onerous conditions of confinement. Petitioner contends that he is entitled to a sentence reduction of 6 to 12 months and an order of immediate deportation.
Respondent contends that the motions should be denied on the grounds that the Petitioner knowingly and voluntarily waived his right to collaterally attack his sentence in the plea agreement. Respondent contends that Petitioner has procedurally defaulted on all claims because he did not raise any claims on direct appeal. Respondent further asserts that Petitioner's claim based upon his ineligibility for programs ...