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Montanez-Baza v. United States

May 21, 2009

ANDRES MONTANEZ-BAZA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2255

On September 10, 2008, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 70 months in custody and three years of supervised release resulting from his conviction for violation of 8 U.S.C. § 1326. (Doc. No. 27.) On October 16, 2008, pursuant to the Court's scheduling order, the Government filed a response in opposition to the Petition. (Doc. No. 29.) On December 5, 2008, Petitioner filed his reply in support of his Petition. (Doc. No. 30.) After due consideration of the parties' submissions and the record in this case, the Court concludes that an evidentiary hearing is unnecessary and DENIES Petitioner's motion to vacate, set aside, or correct his sentence for the following reasons.

Factual and Procedural Background

According to the Complaint filed against Petitioner in his criminal case, Petitioner attempted to enter the United States on September 14, 2007 at approximately 9:18 p.m. (Doc. No. 1.) During primary inspection, Petitioner reportedly stated that he was a United States citizen by virtue of being born in Los Angeles, California, and presented a California Identification Card. (Id.) Upon receiving a computer-generated referral, the primary Customs and Border Protection Officer referred Petitioner's vehicle to secondary inspection, where Petitioner's fingerprints were queried in the Integrated Automated Fingerprint Identification System. (Id.) At that time, Deportable Alien Control System records showed that Petitioner had been removed from the United States on or about August 27, 2007 after being found deportable by an Immigration Judge. (Id.) The records contained no indication that Petitioner had applied for or received permission to re-enter the United States. (Id.)

On October 10, 2007, a grand jury issued an indictment charging Petitioner with violations of 8 U.S.C. § 1326(a) and (b) for attempted entry after deportation and 18 U.S.C. § 911 for false claim to United States citizenship. (Doc. No. 5.)

Petitioner signed a Plea Agreement on November 2, 2007. (Doc. No. 12.) Under the Plea Agreement, Petitioner agreed to plead guilty to Count One of the Indictment for violation of 8 U.S.C. § 1326. (Id.) The Government agreed to move to dismiss the remaining charge for violation of 18 U.S.C. § 911. (Id.) On November 13, 2007, Petitioner entered his guilty plea as to Count One before the Magistrate Judge. (Doc. Nos. 10-12.) The Magistrate Judge subsequently issued Findings and a Recommendation that the Court accept Petitioner's plea. (Doc. No. 13.)

On April 21, 2008, after careful review of the record -- including the Sentencing Memorandum and accompanying letters submitted by Petitioner -- the Court accepted Petitioner's plea and sentenced Petitioner to 70 months in custody and three years of supervised release for violation of 8 U.S.C. § 1326. (Doc. Nos. 23-26.) This sentence represents the low end of the advisory guidelines range as calculated by the Court. (Sentencing Tr. 6:2.) On the Government's motion, the Court dismissed Count Two of the Indictment.

On September 10, 2008, Petitioner filed his Section 2255 Habeas Corpus Petition, alleging ineffective assistance of counsel and arguing that the Plea Agreement is invalid because it was not knowingly and intelligently entered. (Doc. No. 27.)

Discussion

I. Waiver of Right to Appeal of Collaterally Attack Sentence

Paragraph XI of the Plea Agreement signed by Petitioner is entitled "Defendant Waives Appeal and Collateral Attack." (Plea Agrmt. at 8.) That paragraph provides:

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.) The Ninth Circuit approves of such waivers on public policy grounds, reasoning that finality is "perhaps the most important benefit of plea bargaining." United States v. NavarroBotello, 912 F.2d 318, 322 (9th Cir. 1990). Courts will generally enforce a defendant's waiver of his right to appeal if: (1) "the language of the waiver encompasses the defendant's right to appeal on the grounds claimed on appeal," and (2) "the waiver is knowingly and voluntarily made." United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir. 1998). The Court concludes that both of these requirements are met in this case.

A. The Language of the Waiver Encompasses Petitioner's Motion

It is a fundamental rule in the Ninth Circuit that "plea agreements are contractual in nature and are measured by contract law standards." United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000) (quotation omitted). Courts focus on the language of the waiver to determine its scope. United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996). Here, viewing Petitioner's Plea Agreement as any other contract, its plain language clearly encompasses a motion under Section ...


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