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 December 13, 2007, Petitioner Karla Rios ("Petitioner") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. Respondent has filed a response and opposition, and Petitioner filed a reply. In her motion, Petitioner contends that her counsel performed ineffectively. Specifically, Petitioner argues that her counsel was ineffective by: (1) failing to explain the plea agreement; (2) failing to explain the presentence report; (3) failing to submit "mitigating factors" to the Court at sentencing; and (4) failing to file an appeal from her conviction and sentence. In addition, Petitioner claims the Court erred at sentencing by (1) not ruling on objections to the presentence report; (2) sentencing her based on materially incorrect information; and (3) failing to state the reasons for the sentence imposed. Petitioner's assertions are factually incorrect, belied by the record, and entirely without legal merit. The Court has reviewed the record, the submissions of the parties, and the supporting exhibits and, for the ns set forth below, will DISMISS Petitioner's motion.
In November 2006, Petitioner entered into a written plea agreement with the vernment.*fn1 Under the terms of the plea agreement, Petitioner agreed to waive any right to appeal, or to collaterally attack her conviction and sentence, unless the Court imposed a custodial sentence greater than the high end of the guideline range recommended by the vernment pursuant to the plea agreement. See Plea Agreement ¶ XI. During the plea proceedings before Magistrate Judge Barbara L. Major, Petitioner clearly acknowledged that she understood, that by entering the plea agreement, she was waiving her rights to appeal and teral attack.
On July 2, 2007, this Court accepted Petitioner's guilty plea and sentenced her to a term of 37 months in custody. This sentence was almost seven years less than the 10-year minimum atory under 21 U.S.C. §§ 952 and 960, and reflected the Court's adoption of all downward adjustments and departures recommended by the Government in addition to 4 further levels of nward departures sought by Petitioner's counsel.*fn2
Petitioner waived both the right to appeal and the right to collaterally attack the judgment and sentence as part of her 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.
Regarding 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 ing both: 1) that her defense counsel's performance was deficient; and, 2) that this icient performance prejudiced her defense. Id. at 690-92; Hendricks v. Calderon, 70 F.3d 2, 1036 (9th Cir. 1995).
To satisfy the deficient performance prong of the Strickland test, the Petitioner must show that her 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 (2d 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 she was prejudiced by the deficient representation she 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 her counsel's performance that could be considered outside the range of competence demanded of attorneys in criminal cases. On the contrary, defense counsel acted as a zealous advocate for the Petitioner. The record further refutes Petitioner's claim that counsel failed to present "mitigating factors" to the court. For example, defense counsel requested a psychological evaluation of Petitioner and obtained ral continuances of the sentencing hearing in order to accomplish the evaluation and report. Petitioner's sentencing hearing was continued several times (approximately six months) while defense counsel prepared a thorough sentencing package to present to the Court. Petitioner's counsel filed a lengthy sentencing memorandum including a psychological evaluation by Meredith Friedman, Ph.D; extensive medical records; numerous letters; and several tographs to the Court in support of her request for further downward departures in addition to those recommended by the Government. Counsel raised similar arguments at the sentencing hearing, and convinced the Court to ultimately depart downward a total of four levels beyond the departures recommended by the Government arriving at a low-end guideline sentence of 37 months.
As stated above, Petitioner signed a plea agreement in which she agreed to waive any to appeal, or to collaterally attack her conviction and sentence, unless the Court imposed a custodial sentence greater than the high end of the guideline range recommended by the vernment pursuant to the plea agreement. See Plea Agreement ¶ XI. In the plea agreement, Petitioner initialed her assent that her plea was knowing and voluntary, and signed owledging that she fully understood the agreement's terms. Therefore, Petitioner's valid waiver of her right to appeal forecloses her claim that failure to file an appeal constituted ineffective assistance.
During the plea colloquy before Magistrate Judge Major, Petitioner specifically stated that she understood the concept of collateral attack, that she knew she had waived it, and that she had no questions about that waiver. Judge Major confirmed that Petitioner had reviewed and initialed every page of the plea agreement, indicating that she knew and understand the contents of each page. Petitioner affirmed under oath that she had reviewed the entire agreement and discussed it with her counsel and that she had signed it on the last page. Judge Major asked itioner if she had any questions about the plea agreement, Petitioner replied in the negative. Judge Major further confirmed that Petitioner's counsel had discussed the plea agreement thoroughly with her, including the provision on waiver of appeal and collateral attack. Even assuming that Petitioner's counsel did assure her that she would receive a lower sentence under lea agreement, this would not provide Petitioner with a basis for relief. See, e.g., United States v. Michlin, 34 F.3d 896, 899 (9th Cir. 1994) (defense attorney's failure to accurately inform the defendant of the sentencing range he faced ...