The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON PETITIONER'S REQUEST FOR RELIEF UNDER 28 U.S.C. § 2255
Petitioner Rosa Mandujano ("Petitioner") seeks relief under 28 U.S.C. § 2255 from the sentence of 57 months custody in the Bureau of Prisons that was imposed by the Court on March 9, 2005, following Petitioner's entry of a plea of guilty to Mail Fraud, Conspiracy to Commit Money Laundering, and Forfeiture. For the reasons that follow, the Court will deny the petition in part and receive additional briefing.
On November 22, 2004, pursuant to a plea agreement, Petitioner pled guilty to Mail Fraud, Conspiracy to Commit Money Laundering, and Forfeiture. Pursuant to the plea bargain, Petitioner agreed to waive her right to appeal and her right to collaterally attack her conviction; however, the plea also expressly stated that Petitioner "reserves the right to appeal her sentence." Court's Criminal Docket Doc. No. 115. The plea bargain document included an explanation of maximum sentences for each offense, an express waiver of constitutional rights including the right to a jury trial, right to counsel, and the right to have certain findings made by a jury beyond a reasonable doubt, the factual bases for the charged offenses, and that the loss attributed to Petitioner's conduct was between $7 and $20 million. See id. The government also agreed to a downward departure. See Court's Civil Docket No. 7.
On March 9, 2005, Judge Coyle sentenced Petitioner to a term of 57 months in the bureau of prisons, 36 months supervised release, and joint and several restitution with co-defendants for $8,836,537. See Court's Criminal Docket at Nos. 127, 128. Petitioner did not file an appeal. On August 26, 2005, Petitioner filed this 28 U.S.C. § 2255 motion. Petitioner's motion alleges that she received ineffective assistance of counsel because: (1) counsel did not explain the consequences of signing the plea agreement, that is, that she was waiving her constitutional rights; (2) counsel did not file a direct appeal despite Petitioner's request to do so; (3) counsel did not show Petitioner the Pre-Sentence Report ("PSR"); (4) Rule of Criminal Procedure 11 was violated because counsel did not explain that signing the plea agreement waived her rights; and (5) the rule of Booker was violated. See Court's Civil Docket at Nos. 1, 2. Pursuant to a court order, the government responded to Petitioner's § 2255 motion and argued that Petitioner was improperly seeking to appeal her conviction despite an express waiver of her appeal rights in her plea bargain agreement.*fn1 See id. at No. 7.
General 28 U.S.C. § 2255 28 U.S.C. § 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996). Mere conclusory statements or statements that are inherently incredible in a § 2255 motion are insufficient to require a hearing. United States v. Howard, 381 F.3d 873, 879 (9th Cir. 2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). Accordingly, an evidentiary hearing is required if: (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. Howard, 381 F.3d at 877.
Ineffective Assistance of Counsel
Because claims of ineffective assistance of counsel usually implicate the validity of plea agreements that are secured through the efforts of the allegedly ineffective counsel, those claims are generally not considered waived by plea agreements.*fn2 See United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). To establish a constitutional violation for the ineffective assistance of counsel, a defendant must demonstrate (1) a deficient performance by counsel, and (2) prejudice to him. See Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). This test applies to challenges to guilty pleas based on ineffective assistance of counsel claims. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Jeronimo, 398 F.3d at 1155. To prove a deficient performance of counsel, the petitioner must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made." Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985); see also Jeronimo, 398 F.3d at 1155. Courts considering ineffective counsel claims "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; Jeronimo, 398 F.3d at 1155. To show prejudice, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A court addressing a claim of ineffective assistance of counsel need not address both prongs of the Strickland test if the petitioner's showing is insufficient as to one prong. Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. In the context of a plea bargain, the prejudice requirement is met by showing that, but for counsel's alleged errors, the petitioner would have rejected the plea offer and insisted on going to trial. See Hill, 474 U.S. at 57-59; Womack v. McDaniel, 497 F.3d 998, 1002 (9th Cir. 2007); Weaver v. Palmateer, 455 F.3d 958, 967 (9th Cir. 2006).
In the context of a failure to timely file a direct appeal, the court must employ a fact-based analysis to determine if counsel's failure to file was unreasonable. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). However, an attorney's failure to file an appeal where there is clear instruction by the defendant to do so is professionally unreasonable, and a petitioner need not show that an appeal likely has merit. See United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005) (citing Flores-Ortega, 528 U.S. at 477; United States v. Peguero, 526 U.S. 23, 28 (1999)). When a petitioner claims that his attorney disobeyed instructions to file a direct appeal, the Ninth Circuit has explained:
If a defendant, even one who has expressly waived his right to appeal, files a habeas petition after sentencing and judgment claiming that he ordered his attorney to appeal and his attorney refused to do so, two things can happen. The district court can hold an evidentiary hearing to decide whether petitioner's allegation is true, and if it is, vacate and re-enter the judgment, allowing the appeal to proceed. Or, if the state does not object, the district court can vacate and re-enter the judgment without a hearing and allow the appeal to proceed, assuming without deciding that the petitioner's claim is true.
Sandoval-Lopez, 409 F.3d at ...