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 SENTENCE [Doc. No. 62]
Presently before the Court is Martha Carranza's ("Petitioner") motion to vacate, set aside, or correct pursuant to 28 U.S.C. § 2255. For the following reasons, the Court DENIES Petitioner's motion.
On June 28, 2006, the Court accepted Petitioner's guilty plea to one count of importation of cocaine in violation of 21 U.S.C. §§ 952, 960. The Court sentenced petitioner to 30 months in jail with 3 years of supervised release. On December 21, 2006, the Court entered judgment.
Petitioner challenges her confinement under 28 U.S.C. § 2255. Specifically, Petitioner's motion worksheet sets forth four grounds for relief: (1) Ineffective Assistance of Counsel; (2) Failure to File Petitioner's Appeal; (3) Violation of the Sixth Amendment; and (4) Violation of Plea Agreement. These points, however, are not all clearly addressed in Petitioner's attached memorandum which includes various recitations of legal opinions unrelated to Petitioner's case. In her traverse, Petitioner clarifies her grounds for relief, asserting the claim is based solely on the ineffectiveness of her counsel:
[T]he only object that I feel the this Honorable Court needs to now is that counsel was so ineffective that [sic] never help me in the process of the case, and I do believe that this Honorable Court knows that not [sic] knowin the law of the United States I was deprived of my constitutional rights. (See Petitioner's Traverse, at 2.) She specifically asserts counsel was ineffective in connection with explaining the effect of the plea agreement entered in the case:
[Counsel was ineffective] by not explaining  the consequences of  signing the plea agreement, and the presentence report and failing to file [an] appeal . . . . (Id. at 3.) Petitioner goes on to assert the plea agreement was not entered into voluntarily but instead the product of pressure by counsel:
Petitioner did not have the opportunity to make an informed decision because her attorney insisted that she sign the plea agreement. (Id.) She argues she was prejudiced since she involuntarily surrendered her right to a trial and her right to appeal. (Id. at 4.)
Under 28 U.S.C. § 2255, the court may vacate, set aside, or correct a sentence which was "imposed in violation of the Constitution or laws of the United States." Petitioner is entitled to an evidentiary hearing on her claims "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Thus, an evidentiary hearing is necessary where "the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).
As an initial matter, Respondent opposes Petitioner's motion on the ground that as part of her plea agreement, Petitioner waived any right to collaterally attack her conviction and sentence.
While the Ninth Circuit has upheld the validity of waivers of statutory rights, such as the right of appeal and collateral attack, see United States v. Abarca, 985 F.2d 1012, 101 (9th Cir. 1993), such a waiver does not include claims of ineffective assistance of counsel brought under 28 U.S.C. § 2255. United States v. Baramadyka, 95 F.3d 840, 844 (9th Cir. 1996). Because Petitioner claims that her plea agreement was made based on ineffective assistance of counsel, the Court must review the substance of Petitioner's claims.
II. Ineffective Assistance of Counsel
"A guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not 'a reasonably competent attorney' and the advice was not 'within the range of competence demanded of attorneys in criminal cases.'" Strickland v. Washington, 466 U.S. 668, 687 (1984). To make out a claim of ineffective assistance of counsel under Strickland, Petitioner must show (1) "that counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Id. The Ninth Circuit has applied the Strickland standard to claims of ineffective assistance of counsel during the plea bargain process in non-capital cases. Washington v. Lampert, 422 F.3d 864, 872-73 (9th Cir.2005); Riggs v. Fairman, 399 F.3d 1179, 1182 n. 3 (9th Cir.2005).
Deficiency of counsel, the first prong of the Strickland test, "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." Id. at 688. Furthermore, judicial scrutiny of counsel must be highly deferential because of the risk that the benefit of hindsight would make the counsel's performance seem unreasonable. Id. at 689.
The second prong of the Strickland test requires that any deficiency of counsel also be prejudicial. Id. at 692. Therefore, even if a defendant is able to show that counsel acted unreasonably, he still must show that counsel's actions had an adverse effect on the outcome. Id. at 693. "The defendant must show that there is a reasonable probability that, but for ...