The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER OSCAR ROSALES' MOTION FOR APPOINTMENT OF COUNSEL, DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT
On September 2, 2008, Petitioner Oscar Rosales timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner, represented by attorneys Salvatore Sciandra and Alan Ellis, pleaded guilty pursuant to a written Plea Agreement to Count Two of the Superseding Indictment charging him with conspiracy to distribute and possess with intent to distribute marijuana. (Doc. 461). Pursuant to the Plea Agreement, Petitioner specifically agreed: 3. Agreements by the Defendant. ... (f) The defendant understands that the law gives him a right to appeal his conviction and sentence. The defendant waives any right to appeal his conviction and sentence and any right he may have to bring any other post-conviction attack on his conviction and sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction and sentence.
Mr. Ellis, a federal sentencing expert, filed a Sentencing Memorandum on behalf of Petitioner in which it was argued that the Court should depart downward from the Sentencing Guidelines pursuant to USSG § 5K2.13 because Petitioner suffered from reduced mental capacity that contributed to the commission of the offense, specifically that Petitioner suffers from Bipolar Disorder. (Doc. 602). The Sentencing Memorandum was supported by Declarations filed by Dr. Howard Terrell. Evidentiary hearings at which Dr. Terrell and others testified were conducted on August 22 and 28, 2007. (Docs. 607, 610). Petitioner was sentenced on August 28, 2007 to 169 months incarceration and a 60 month term of supervised release. Because Petitioner waived his right to appeal his conviction and sentence in the Plea Agreement, Petitioner was not advised of his right to appeal with his knowing and voluntary consent and that of his attorneys at sentencing. (Doc. 613). In his Section 2255 motion, Petitioner asserts two grounds for relief, denial of the effective assistance of counsel and denial of right to appeal. Petitioner asserts: "Counsel did not properly explain the effect of synergism when using marijuana and alcohol along with medical condition of Bi-Polar" and that "Counsel Improperly advised client not fully understand the consequences of his plea." A defendant may waive the statutory right to bring a Section 2255 motion challenging the conviction or sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1992), cert. denied, 508 U.S. 979 (1993). The Ninth Circuit ruled that "a plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim that challenges the voluntariness of the waiver." Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.2005), cert. denied, 547 U.S. 1074 (2006).
Here, Petitioner appears to assert that he was denied the effective assistance of counsel in entering into the Plea Agreement and in the decision to plead guilty.
The standards governing an assertion of ineffective assistance of counsel are set forth in Strickland v. Washington, 466 U.S. 668 (1984). As explained in United States v. QuinteroBarraza, 78 F.2d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996):
According to Strickland, there are two components to an effectiveness inquiry, and the petitioner bears the burden of establishing both ... First, the representation must fall 'below an objective standard of reasonableness.' ... Courts scrutinizing the reasonableness of an attorney's conduct must examine counsel's 'overall performance,' both before and at trial, and must be highly deferential to the attorney's judgments ... In fact, there exists a 'strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."' ... In short, defendant must surmount the presumption that, 'under the circumstances, the challenged action "might be considered sound trial strategy."' ... Thus, the proper inquiry is 'whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.' .... If the petitioner satisfies the first prong, he must then establish that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result would have been different ....
To prevail on a claim of ineffective assistance of counsel based on the contention that a guilty plea was not knowing and voluntary, the petitioner must show that (1) counsel's representation fell below the range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Petitioner has not demonstrated ineffective assistance of counsel under these standards. During the change of plea colloquy under Rule 11, Federal Rules of Criminal Procedure,
Petitioner, who was under oath, responded as follows to the Court's questions:
Q: How much education have you complete [sic]?
Q: Have you ever been treated for a mental illness?
Q: Have you ever been treated for addiction to narcotic drugs?
A: Alcohol, yes. Alcohol.
Q: How long ago was that?
A: I'm a recovering alcoholic. Around six years ago, your Honor.
Q: Has any prior use of alcohol had any effect on the clarity of your ...