The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT PETITIONER'S SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 244.)
Presently before the Court is Jose Chavez-Diaz's ("petitioner") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 244.) Petitioner claims the prosecution violated his Fifth Amendment right to due process by breaching the plea agreement at his sentencing. Petitioner also claims his sentence violated due process because he was never advised, prior to entering into the plea agreement, that his sentence would be enhanced based on his prior convictions. Finally, petitioner claims his counsel was ineffective in failing to challenge the prosecution's alleged breach of the plea agreement and in informing petitioner he could not appeal his sentence. For the following reasons, the Court denies the motion.
On October 1, 1996, the United States filed an Information charging petitioner with a violation of 21 U.S.C. §§ 846 and 841(a)(1), conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to distribute. (Doc. No. 5-2.) A superseding indictment filed October 22, 1996 added a count of possession of firearms in violation of 18 U.S.C. § 924(c)(1). (Doc. No. 19.) Authorities arrested petitioner on January 8, 2001, and he appeared before the magistrate judge on January 29, 2001. (Doc. No. 180.) In petitioner's plea agreement, he affirmed his plea was knowing and voluntary and he waived his right to appeal or collaterally attack his conviction and sentence. (Opposition, Ex. A at 4 & 7.) Petitioner's plea agreement also included a provision indicating petitioner was "aware that any estimate of the probable sentence by defense counsel is a prediction, not a promise, and is not binding on the court." (Id. at 5.) In exchange for petitioner's plea of guilty to the methamphetamine count, the government agreed to dismiss the firearms count, to recommend a downward adjustment based on petitioner's acceptance of responsibility, and not to recommend an increase based on petitioner's role.
On June 28, 2001, the Court accepted petitioner's plea of guilty. (Doc. No. 197.) In response to the Court's questions, petitioner stated he understood the terms of his plea agreement, he had spoken with his attorney about the plea agreement, and he was satisfied with his attorney's services. (Opp. Ex. B at 5-6.) Petitioner also affirmed he understood the constitutional rights he forfeited by pleading guilty and stated he was not forced to plead guilty. (Id. at 14.) Petitioner further stated he understood he gave up his right to appeal his sentence if he received a sentence no more than the low end of the guideline range at an adjusted offense level 37.*fn1 (Id. at 14-15.) Petitioner also indicated he understood that while the Court could advise of him of the maximum and minimum penalties, it could make no promises about his final sentence. (Id. at 14-15.)
On April 16, 2002, the Court sentenced petitioner to a prison term of 188 months and supervised release for a term of 5 years. (Doc. No. 203.)
On December 26, 2007, petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 244.) On January 3, 2008, the Court ordered the government to show cause as to why the petition should not be granted. (Doc. No. 245.) On February 22, 2008, the government filed a response in opposition to the petition. (Doc. No. 246.) Petitioner did not file a reply.
As an initial matter, the Court considers the timeliness of petitioner's motion. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), motions under Section 2255 must be filed within a one-year statute of limitations. 28 U.S.C. § 2255(f). The Court entered judgment against petitioner on April 18, 2002. Petitioner did not appeal, and petitioner did not file the instant motion until December 26, 2007. Accordingly, unless petitioner can show the statute of limitations should be tolled, petitioner's motion is not timely.
Equitable tolling is available when an "extraordinary circumstance beyond [petitioner's] control" made it "impossible for [him] to file [his] motion within the appropriate time period." United States v. Schwartz, 274 F.3d 1220, 1224 (9th Cir. 2001); see United States v. Battles, 362 U.S. 1195, 1197 (9th Cir. 2004) (holding Section 2255 petitions may be equitably tolled in the same circumstances as Section 2254 petitions). "[T]he threshold necessary to trigger equitable tolling ...