The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Petitioner, proceeding in propia persona, moves to vacate his sentence under 28 U.S.C. § 2255. He appears to argue that he received ineffective assistance of counsel because his 27-month sentence was 12 months longer than that to which he agreed in his plea agreement. He also argues that illegal aliens cannot be subjected to supervised release. The government opposes the motion. For the reasons set forth below, the court hereby DENIES the motion.
Pursuant to a written plea agreement, Petitioner pleaded guilty on February 9, 2006 to one count of encouraging or inducing an illegal alien to enter the United States, and aiding and abetting, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and (v)(II). (Resp., Exh. 2 ("Plea Agreement") at 2.) The plea agreement provided that the parties would jointly recommend a base offense level of 12, a two-level downward departure for acceptance of responsibility, a four-point upward departure for uncharged conduct,*fn1 and a two-level downward departure for fast-track disposition, amounting to a total offense level of 12. (Id. at 9-11.) In exchange for Petitioner's guilty plea, the government agreed not to charge Petitioner with violating 8 U.S.C. § 1324(a)(2)(B)(ii), which would carry a five-year mandatory minimum sentence. (Id. at 5.) The plea agreement also provided,
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 agreement at the time of sentencing. (Id. at 12.)
During the February 9, 2006 plea colloquy before Magistrate Judge Ruben B. Brooks, Petitioner indicated that he understood he was giving up his right to appeal and collaterally attack and that he otherwise understood the plea agreement in its entirety. (See, e.g., Resp., Exh. 3 ("Plea Colloquy") at 7.) Magistrate Judge Brooks found that Petitioner was competent to enter the plea and had entered into the plea agreement "knowingly and voluntarily with a full understanding of the charge, [Petitioner's] rights, and the consequences of the plea." (Id. at 11.) On May 10, 2006, this court accepted Petitioner's guilty plea and sentenced Petitioner to 27 months in prison, followed by a three-year term of supervised release. (Minute Order of May 10, 2006 (Doc. no. 22); Judgment (Doc. no. 23).) This sentence did not exceed the applicable sentencing range of 27-33 months. (See Resp., Exh. 4 ("Judgment and Sentencing Hearing") at 9.) The court advised Defendant, "I have sentenced you under the agreement you have entered into and in such a way that you have waived your right to appeal or in any other way attack or challenge both the conviction based on your plea of guilty in this case as well as the sentence imposed[.]" (Id. at 10-11.) Defendant stated that he understood these facts. (Id. at 11.)
In his § 2255 motion, Petitioner claims that he signed a plea agreement under which he would be sentenced to 15 months in prison, but that the court ultimately sentenced him to 27 months. In support of his arguments, he includes a legal brief that appears to relate not to this case but to Case No. 05cr0386 -- another criminal case involving Petitioner. (See Mot. at 9 ("Defendant's Objection to the Court's Imposition of Probation/Supervised Release because the Relevant Statute 8 U.S.C. Sec. 1326 Does Not Mandate the Imposition of that Separate Sentence").)*fn2
Respondent construes the petition as claiming ineffective assistance of counsel and opposes it on the following three grounds: (1) Petitioner's claims are time-barred; (2) Petitioner waived his right to collaterally attack his sentence and conviction; and (3) Petitioner's ineffective assistance of counsel argument fails on the merits.
A. Petitioner's Claims Are Not Time-Barred
Respondent claims that the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 bars Petitioner's claims. See 28 U.S.C. § 2255(f). Petitioner's judgment of conviction became final on May 15, 2006. Petitioner signed his § 2255 motion on June 12, 2006, and the motion was filed on July 6, 2006. The court ordered service of the motion and the court's scheduling order on October 15, 2007. The government inaccurately claims that the motion was not signed and served until June 12, 2007. Because Petitioner moved for § 2255 relief within a year of the date on which his conviction became final, Petitioner's claims are not time-barred.
B. Petitioner Waived His Right to Collateral Attack
Respondent argues that Petitioner cannot collaterally attack his sentence because he waived his right to do so in his plea agreement. Petitioner's § ...