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
Defendant-Petitioner Jesus Fernandez-Alvarez brings this motion pursuant to 28 U.S.C. §2255 ("Motion") alleging that (1) he was denied effective assistance of counsel; (2) the Government breached the plea agreement; and (3) he qualified for a downward departure based on his stipulation for deportation but was denied such departure. The Government has filed a response in opposition to the Motion. Defendant did not file a traverse or other responsive pleading. 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.
On February 27, 2005 Defendant was apprehended near the United States border with Mexico while concealing himself in the brush. (ER 2). Defendant, a citizen and national of Mexico, admitted that he was in the country without authorization and that he had been previously deported. On August 11, 2005 Defendant pleaded guilty to the indictment charging him with illegal entry into the United States in violation 8 U.S.C. §1326. In the Plea Agreement, Defendant waived his right to appeal and to collaterally attack his sentence. (ER 38).
At the time of the plea colloquy before Judge John S. Rhoades, Defendant affirmed his acceptance of the offer contained in the Plea Agreement and acknowledged, among other things, that he was waiving his right to appeal or collaterally attack the conviction. (ER 42-43). Defendant affirmed that his plea was being made freely and voluntarily and that the Court did not have to follow the sentencing recommendation of the Government. On October 26, 2005 the Government recommended a guideline range of 70 to 84 months and the Defendant recommended no more than 36 months. (ER 84). Defendant also sought a downward departure by two levels for fast track departure because he pleaded guilty before discovery motions were decided. Defendant also argued that his criminal history was over-represented. In response, the Government noted that Petitioner's felony conviction for sexual battery stemmed from an apparent gang rape and that a Criminal History Category of V adequately represented Petitioner's criminal history. (ER 97).*fn1 The Government further noted that no fast track departure was permitted because Petitioner rejected the Government's fast track offer and filed numerous substantive motions. (ER 95-96).
On October 31, 2005 Judge Rhodes sentenced Petitioner to 70 months' custody and imposed a three year term of supervised release. Judge Rhodes found that a criminal history category of V was appropriate under the circumstances. Judge Rhodes also asked Petitioner and Petitioner's counsel whether the sentence was within the terms of the Plea Agreement. Both Petitioner and his counsel responded affirmatively. (ER 66:13-23).
On November 14, 2005 Petitioner filed a Notice of Appeal on a pro se basis. Petitioner argued that his counsel failed to identify and investigate various Rule 11 errors made during the plea colloquy and that his waiver was not knowing and intelligent. On January 9, 2007 the Ninth Circuit dismissed the appeal, noting that Petitioner had knowingly and voluntarily waived his right to appeal and was sentenced within the terms of the plea agreement.
Procedurally, on August 31, 2007 the court established a briefing schedule on the Motion. On November 2, 2007 the court granted the Government's request for additional time to file a response to the Motion. Petitioner did not file a traverse to the Government's response.
The Plea Agreement specifically provides for the waiver of Petitioner's rights to appeal and to collaterally attack the 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, 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 plea agreement at the time of sentencing. If the custodial sentence is greater than the high end of that range, defendant may appeal, but the Government will be free to support on appeal the sentence actually imposed. 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. (ER38). Here, as a convicted individual with a Criminal History Category V, the court sentenced Petitioner to the low end of the Sentencing Guideline range, 70 months. Accordingly, by the plain terms of the plea agreement, Petitioner has waived his right to attack his conviction and sentence pursuant to 28 U.S.C. §2255. Waivers of a right to appeal or collaterally attack a conviction and sentence are generally valid. See United States v. Abarca, 958 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993). However, it is not clear that a defendant can validly waive his right to bring an ineffective assistance of counsel claim. In United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994), the Ninth Circuit "doubt[ed] that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement of the defendant to plead guilty or accepted a particular plea bargain" but noted that a waiver to collaterally attack a sentence based "only [on] counsel's alleged mishandling of the sentencing proceedings" is enforceable.
The Government argues that this court should follow the dicta in Pruitt, consistent with the Second, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits, (Response at pp. 5:19-20; 4:7-9), and hold that an ineffective assistance of counsel exception to collateral attack waivers is limited to those cases directly implicating the validity of the waiver itself, and not to alleged sentencing errors (as long as the actual sentence imposed is consistent with the plea agreement). "A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack." United States v. Boce, 488 U.S. 563, 569 (1989).
In light of the errors alleged by Petitioner, the court concludes that he has validly waived his right to collaterally attack the sentence. The only arguments raised by Petitioner attack alleged deficiencies at sentencing. Petitioner does not challenge the voluntariness of his waiver or otherwise inform the court of any other reasoned basis to invalidate the waiver. Seen in this light, the court concludes that Petitioner has validly waived his right to collaterally attack his sentence. See Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (upholding the validity of a waiver of appellate and collateral relief because "a contrary result would permit a defendant to circumvent the terms of the sentence - appeal waiver simply by recasting a challenge to his sentence as a claim of ineffective assistance, thus rendering the waiver meaningless").
Nonetheless, even if Petitioner did not validly waive his right to assert such sentencing-related claims, his ineffective assistance of counsel claims fail on the merits. To establish a claim of ineffective assistance of counsel, Petitioner must show that his counsel's performance was deficient, i.e., that it fell below the objective standard of reasonableness, and that counsel's performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 688 (1986). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 687. To establish prejudice, a defendant who pleaded guilty must demonstrate "that his attorney's representation fell below an objective ...