The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING 28 U.S.C. § 2255 MOTION FOR HABEAS RELIEF [Dkt No. 32]
This matter is before the court on the 28 U.S.C. § 2255 Motion of Reyna Gabriela Gutierrez-Alvarez ("Petitioner"), proceeding pro se, to vacate, set aside, or correct her sentence imposed January 7, 2008, following her guilty plea to one count of aiding and abetting and transporting undocumented aliens (8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II)). Dkt No. 21. The maximum penalty for the offense was 5 years in prison, among other things, as recited in the Plea Agreement she signed. That document also explained the actual sentence imposed would be based on the factors set forth in 18 U.S.C. § 3553(a), and the sentencing judge would take into account the advisory United States Sentencing Guidelines, and the court could impose a sentence up to the maximum in the statute of conviction. Dkt No. 21 pp. 8-9.
In response to Petitioner's Motion, the court instructed the Government to procure and lodge transcripts of Petitioner's change of plea hearing and of her sentencing hearing for purposes of evaluating her claim for relief. From the face of that record, the court finds it may summarily adjudicate the habeas petition.
At her change of plea hearing, Petitioner waived her right of appeal or collateral attack on any sentence ultimately imposed if that sentence was at or below the agreed six-month custody recommendation, 10/16/07 R.T. p. 18. At her sentencing hearing, the Government recommended six months with three years supervised release, as contemplated in the Plea Agreement. 1/7/08 R.T. p. 7. The undersigned District Judge determined a longer sentence would be appropriate. The court discussed on the record the aggravating factors it had identified and the details of its offense level calculation, to conclude the offense level was 11, with a Guideline range of 8 to 14 months. The court considered the 18 U.S.C. § 3553(a) factors before finding the middle of that range to be her appropriate sentence, imposing 12 months custody, followed by three years supervised release. 1/7/08 R.T. pp. 7-9. The court acknowledged that sentence fell outside the agreed range because of the court's determination the agreed range did not adequately or accurately take the Guidelines into account. The court informed Petitioner the sentence accordingly "does trigger the right to appeal," notwithstanding the express waivers in the Plea Agreement and on the record at her change of plea hearing. 1/7/08 R.T. 9:22-25.
THE COURT: The court advises you, Ms. Gutierrez, that you have a right to appeal the judgment and sentence of this court Your notice of appeal has to be filed within 10 days; has to be filed in this court. [Your attorney] will help you or the Clerk of the Court will help you if you choose to appeal. It is likely to be free of charge to you since you are represented by appointed counsel. [¶] Do you understand your right to appeal?
THE DEFENDANT: Yes. 1/7/08 R.T. 10:5-13.
Petitioner did not file a Notice of Appeal. Instead, on February 25, 2008, forty-five(45) days after entry of judgment, she filed this Motion for habeas relief, alleging as her sole ground for relief: ineffective assistance of counsel for purported failure to "explain the consequences of me signing the plea agreement," and because "counsel promise[d] that I was getting 6 months prison and 6 months halfway house."*fn1 Mot. p. 5. The court finds the claim to be without merit for purposes of habeas relief.
The United States Supreme Court clearly established the elements essential to state a cognizable claim for ineffective assistance of counsel and how to evaluate such claims in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating it is beyond question that Strickland is the "clearly established" law governing ineffective assistance of counsel claims). A petitioner must show how his or her counsel's performance was deficient and that counsel's deficient performance prejudiced the petitioner, through a demonstration of a "reasonable probability that . . . the result of the proceeding would have been different" but for counsel's conduct or omissions. Strickland 466 U.S. at 694. This Petitioner cannot make such a demonstration on her theory counsel made sentencing promises, in consideration of the multiple advisements she received regarding her sentencing range. For example, the Plea Agreement document itself recites:
Defendant understands the sentence imposed will be based on the factors set forth in 18 U.S.C. § 3553(a). . . . [and] the sentencing judge must consult the [Guidelines], . . . and the court may impose a sentence more severe or less severe than otherwise applicable under the Guidelines, up to the maximum in the statute of conviction. Defendant understands further that the sentence cannot be determined until a presentence report has been prepared by the U.S. Probation Office . . . . Dkt No. 21 8:25-9:9 (emphasis added).
SENTENCE IS WITHIN SOLE DISCRETION OF JUDGE
[¶] This plea agreement is made pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), Defendant understands that the sentence is within the sole discretion of the sentencing judge. . . . Defendant understands that the sentencing judge may impose the maximum sentence provided by statute, and is also aware that any estimate of the probable sentence by defense counsel is a prediction, not a promise, and is not binding on the Court. Likewise, the recommendation made by the Government is not binding on the Court and it is uncertain at this time what defendant's sentence will be. Defendant also has been advised and understands that if the sentencing judge does not follow any of the parties' sentencing recommendations, defendant nevertheless has no right to withdraw the plea.
Dkt No. 21 9:13-27 (emphasis in original).
With respect to Petitioner's contention that her counsel never explained the consequences of her signing the Plea Agreement, the thorough colloquy on the record at her change of plea hearing plainly and expressly contradicts any inference she was misinformed or uninformed of the consequences of her plea or was prejudiced by her counsel's omission, even if such an omission occurred.*fn2 She identified her signature and initials on the Plea Agreement. 10/16/07 R.T. pp. 8-9. She confirmed: she had the opportunity to go over each paragraph of the Plea Agreement; she in fact read it or had it explained to her in a way she could understand; she had time to discuss it with her attorney before she signed it; her attorney answered any question she had; she was satisfied with the advice she received; she had no remaining questions about any of the terms or language of the Plea Agreement. 10/16/07 R.T. pp. 10-11. She acknowledged she understood the maximum punishment she could receive for the charge against her to which she was pleading guilty included five years in prison. 10/16/07 R.T. 13:22-14:5. She was expressly informed:
THE COURT: Since the sentencing guidelines are not binding on the Court, the sentencing Judge may depart from them and may sentence you up to the statutory maximum ...