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 October 2, 2002, Petitioner Saifullah Durrani ("Petitioner") was charged in a three-count Indictment with: 1) Conspiracy to Distribute Heroin and Hashish, in violation of Title 21, United Code, §§ 846 and 841(a)(1); Conspiracy to Import Heroin and Hashish, in violation of Title United States Code, §§ 852, 960, and 963; and 3) Providing Material Support to a Terrorist Organization, in violation of Title 18, United States Code, § 2339B. On March 3, 2004, pursuant to a written plea agreement, Petitioner pleaded guilty to Counts One and Three of the Indictment.
On April 24, 2006, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside correct sentence. Respondent filed a response and opposition. No reply was submitted by Petitioner, and the time for doing so has expired. The Court has reviewed the record, the submissions of the parties, and the supporting exhibits and, for the reasons set forth below, will DISMISS Petitioner's motion.
In the instant motion brought under 28 U.S.C. § 2255, Petitioner contends that: 1) Petitioner's plea was not knowingly and intelligently entered nor voluntary; 2) Petitioner's attorney did provide him with a "viable defense;" 3) Petitioner was the victim of an illegal search; and 4) Petitioner was "kidnapped" from Hong Kong. Petitioner, however, fails to provide any factual or bases for his claims. Instead, Petitioner promises to provide a factual basis for all of his allegations in a "memorandum of points and authorities" to be filed at a later time. To date, no such morandum has been filed.
Nevertheless, 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 greater than the high end of the guideline range recommended by the Government pursuant the plea agreement. See Plea Agreement ¶ XI.*fn1 During the plea proceedings, Petitioner clearly acknowledged that he understood, that by entering the plea agreement, he was waiving his rights to appeal and collateral attack. Petitioner was sentenced to fifty-seven months in custody, five years supervised release and a $100 mandatory assessment on Count One; and fifty-seven months in stody, three years supervised release, and a $100 mandatory assessment on Count Three, to run current with Count One. See Amended Judgment filed 5/10/06.
Because Petitioner does not challenge the validity of the waiver, the Court finds that the waiver should be enforced. A knowing and voluntary waiver of a statutory right is enforceable. United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to collaterally attack sentence under 28 U.S.C. § 2255 is statutory in nature, and a defendant may therefore waive the to file a § 2255 petition. See, e.g., United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. (by entering plea agreement waiving right to appeal sentencing issues, defendant relinquished 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 defendant's waiver will not bar an appeal if the trial court did not satisfy certain requirements under le 11 of the Federal Rules of Criminal Procedure to ensure that the waiver was knowingly and ntarily made. Navarro-Botello, 912 F.2d at 321. Such a waiver might also be ineffective where sentence imposed is not in accordance with the negotiated agreement, or if the 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 proceedings involving ineffective assistance of counsel or involuntariness of waiver. Abarca, 985 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 all, the record indicates that Petitioner knowingly and voluntarily entered into the Plea agreement and that the requirements of le 11 were adhered to. Secondly, the sentence imposed by the Court was in accordance with the otiated agreement, and in accordance with the applicable sentencing guidelines.
With respect to Petitioner's ineffective assistance of counsel claim, the Sixth Amendment the Constitution provides that every criminal defendant has the right to effective assistance of sel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court enunciated the test 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:
that his defense counsel's performance was deficient; and, 2) that this deficient performance prejudiced his defense. Strickland 466 U.S. at 690-92; Hendricks v. Calderon, 70 F.3d 1032, 1036 Cir. 1995).
To satisfy the deficient performance prong of the Strickland test, the Petitioner must show his counsel's advice was not "within the range of competence demanded of attorneys in criminal es." 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 professionalassistance." Strickland, 466 U.S. at 689. Moreover, post-hoc complaints about the strategy or tactics employed defense counsel are typically found to be insufficient to satisfy the first prong of Strickland. See, 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 received. The focus of the prejudice analysis is on whether the result of the proceeding was damentally unfair or unreliable because of counsel's ineffectiveness. Lockhart v. Fretwell, 506 364, 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 inal cases.
The Court finds that none of the recognized limitations to a defendant's waiver of the right bring a § 2255 motion are present in this case. Accordingly, the collateral attack waiver provision petitioner's plea agreement will be enforced.
For the reasons set forth above, the Court finds that Petitioner has waived his right to collaterally challenge his conviction and sentence in this matter. Accordingly, Petitioner's Motion Vacate, Set Aside or Correct Sentence ...