The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DISMISSING WITH PREJUDICE PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE
On May 26, 2005, Petitioner was charged with one count of importation of marijuana in violation of 21 U.S.C.§§ 952 and 960. An information and a waiver of indictment were filed on June 28, 2005. On July 14, 2005, Petitioner entered a guilty plea pursuant to a plea agreement that he entered into with the United States. On October 3, 2005, the Court accepted Petitioner's guilty plea and sentenced Petitioner to a 24-month term of imprisonment followed by a term of rvised release of four years, as well as assigned a $100 special assessment.*fn1
On January 27, 2006, Petitioner Ricardo Zambrano-Camacho ("Petitioner") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Respondent filed a response and opposition. No reply was submitted by Petitioner, and the time for doing so has expired. The Court has fully reviewed the record, the submissions of the parties, and the porting exhibits and, for the reasons set forth below, DISMISSES Petitioner's motion.
In the instant motion brought under 28 U.S.C. § 2255, Petitioner contends that his counsel performed ineffectively in a number of ways: 1) by not objecting when the judge indicated that he was giving substantial weight to the sentencing guidelines; 2) by failing to object to the pre-sentence report when it did not include all information relevant to18 U.S.C. § 3553(a); 3) by not informing Petitioner of the Government's burden of proof "regarding quantity"; 4) by not objecting to the untimely indictment and criminal complaint; and 5) by failing to object to the over-representation of Petitioner's criminal history. As will be discussed further below, Petitioner's claims are factually inaccurate and without legal merit.
Under the terms of the plea agreement, Petitioner agreed to waive any right to appeal, or to collaterally attack his conviction and sentence, unless the Court imposed a custodial sentence r than the high end of the guideline range recommended by the Government pursuant to the plea agreement. See Plea Agreement ¶ XI.*fn2 During the plea proceedings, Petitioner clearly owledged that he understood, that by entering the plea agreement, he was waiving his rights peal and collateral attack.
Petitioner waived both the right to appeal and the right to collaterally attack the judgment and sentence as part of his plea agreement. Because Petitioner does not challenge the validity of the waiver, the Court finds that the waiver should be enforced. A knowing and voluntary waiver statutory right is enforceable. United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to collaterally attack a sentence under 28 U.S.C. § 2255 is statutory in nature, a defendant may therefore waive the right to file a § 2255 petition. See, e.g., United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (by entering plea agreement waiving right to al sentencing issues, defendant relinquished his right to seek collateral relief from his sentence on the ground of newly discovered exculpatory evidence).
The scope of a § 2255 waiver may be subject to potential limitations. For example, a ndant's waiver will not bar an appeal if the trial court did not satisfy certain requirements under Rule 11 of the Federal Rules of Criminal Procedure to ensure that the waiver was wingly and voluntarily made. Navarro-Botello, 912 F.2d at 321. Such a waiver might also be ineffective where the sentence imposed is not in accordance with the negotiated agreement, or sentence imposed violates the law. Id.; United States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 1996). Finally, a waiver may not "categorically foreclose" defendants from bringing § 2255 ceedings involving ineffective assistance of counsel or involuntariness of waiver. Abarca, F.2d 1012, 1014; United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992). In this case, none of these potential limitations on the validity of Petitioner's waiver are applicable. First of the record indicates that Petitioner knowingly and voluntarily entered into the Plea agreement and that the requirements of Rule 11 were adhered to. Secondly, the sentence imposed by the urt was in accordance with the negotiated agreement, and in accordance with the applicable tencing guidelines.
In regards to Petitioner's ineffective assistance of counsel claims, the Sixth Amendment to the Constitution provides that every criminal defendant has the right to effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court enunciated the test for determining whether a criminal defendant's counsel rendered ineffective assistance. In order to sustain a claim of ineffective assistance of counsel, the petitioner has the burden of showing both: 1) that his defense counsel's performance was deficient; and, 2) that this deficient formance prejudiced his defense. Strickland 466 U.S. at 690-92; Hendricks v. Calderon, 70 d 1032, 1036 (9th Cir. 1995).
To satisfy the deficient performance prong of the Strickland test, the Petitioner must show that his counsel's advice was not "within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985). In considering this issue, there is a "strong presumption that counsel's conduct falls within a wide range of acceptable professional assistance." Strickland, 466 U.S. at 689. Moreover, post-hoc complaints about the strategy or tactics employed by defense counsel are typically found to be insufficient to satisfy the first prong of Strickland. See, e.g., United States v. Simmons, 923 F.2d 934, 956 (2nd Cir. 1991) (appellant's displeasure with strategy employed by trial counsel insufficient to establish ineffectiveness). To satisfy the second prong, a section 2255 petitioner must show that he was prejudiced by the deficient representation he received. The focus of the prejudice analysis is on hether the result of the proceeding was fundamentally unfair or unreliable because of counsel's fectiveness. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
Here, Petitioner has not identified any aspect of his trial counsel's performance that could be considered outside the range of competence demanded of attorneys in criminal cases. Contrary to Petitioner's position, Petitioner's counsel did present mitigating evidence for Petitioner's sentencing and made the appropriate objections. Petitioner's attorney attached a total of 24 exhibits to Petitioner's sentencing memorandum. These attachments included letters ehalf of Petitioner, documents substantiating Petitioner's employment, and documents evidencing Petitioner's absence of criminal history in Mexico. In addition, Petitioner's attorney described Petitioner's economic and family situation, both in the sentencing memorandum and at the time of sentencing. Counsel also highlighted the mitigating evidence during her argument
Petitioner should receive a lesser sentence of 15 months' custody pursuant to the 18 U.S.C. 553(a) factors. The Court finds that Petitioner's counsel performed competently.
Accordingly, the Court finds that none of the recognized limitations to a defendant's waiver of the right to bring a § 2255 motion are present in this case. Therefore, the collateral k waiver ...