Movant, a federal prisoner proceeding pro se, has filed an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant claims: (1) his guilty plea was involuntary, uninformed, and unintelligent due to the ineffective assistance of counsel; (2) he was denied the effective assistance of counsel in connection with the presentence report; (3) retained counsel Hernandez failed to object to specific performance of the plea agreement, and failed to persuade the court that counsel should be removed based on a conflict that had developed; and (4) he was "illegally sentenced under the USSG since two prior misdemeanor convictions were out of 15 year guideline." (Am. Mot. at 6.) Movant relies on United States v. Booker, 543 U.S. 220 (2005) in support of his ineffective assistance claim.
Respondent has filed a motion to dismiss the § 2255 motion on the ground that the motion is barred by the express terms of the plea agreement wherein movant agreed to waive collateral attack. However, respondent's motion fails to address whether petitioner's claims of ineffective assistance of counsel may avoid waiver under Ninth Circuit authority. Moreover, since the filing of the motion to dismiss, a district judge has issued an opinion suggesting "[t]he distinction between conduct occurring before or after the plea has some significance" in the context of ineffective assistance of counsel claims under Ninth Circuit authority. Soto v. United States, 2009 WL 1862454 (E.D. Cal)(1:06-cr-0315-06 AWI). The Soto court went on to resolve the § 2255 claims, but certified for appeal two questions:
1. Does a defendant who executes a plea agreement containing a generalized waiver of rights to appeal or collaterally attack his sentence or conviction thereby waive his right to claim ineffective assistance of counsel where the allegedly ineffective assistance occurred after the plea agreement was executed?
2. Does a defendant who executes a plea agreement containing a generalized waiver of rights to appeal or collaterally attack his sentence or conviction thereby waive the right to claim, either by way of direct appeal or collateral attack, sentencing error under Apprendi, Ameline, or Booker?
In light of Soto, the court will deny respondent's motion to dismiss without prejudice to its renewal. If respondent renews the motion to dismiss, both parties shall address the application of the reasoning set forth in Soto.
Accordingly, IT IS HEREBY ORDERED that respondent's January 20, 2009 motion to dismiss is denied without prejudice to its renewal. A copy of Soto v. United States, 2009 WL 1862454 (E.D. Cal) is appended to this order and shall be served on the parties.
United States District Court, E.D. California. Kathleen Anne Servatius, United States Attorney, Fresno, Efrain SOTO, Petitioner, CA, for Respondent. v. UNITED STATES of America, Respondent.
Nos. CV F 08-0401 AWI, CR F 06-0315-06 AWI
MEMORANDUM OPINION AND ORDER ON PETITIONER'S M OTION TO CORRECT, VACATE OR SET ASIDE SENTENCE June 29, 2009. PURSUANT TO 28 U.S.C. § 2255 AND CERTIFYING ISSUES FOR APPEAL
West KeySummary Criminal Law 110 1920 ANTHONY W. ISHII, Chief Judge.
110 Criminal Law INTRODUCTION
110XXXI(C) Adequacy of ...