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United States v. Curiel

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 28, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
SERGIO CURIEL, SR., MOVANT.

ORDER

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?

Soto, at *11.

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 Counsel

110XXXI(C) Adequacy of Representation

110XXXI(C)2 Particular Cases and Issues *1 In this case, petitioner Efrain Soto ("Petitioner") seeks

110k1920 k. Plea. Most Cited Cases relief under 28 U.S.C. section 2255 from the sentence of Counsel was not ineffective for failure to warn a drug 210 months that was imposed by this court on December defendant that he would be subject to a sentencing 10, 2007, following petitioner's entry of a plea of guilty to enhancement. The defendant asserted that counsel failed one count of possession of methamphetamine with intent to inform him that the finding of an unloaded shotgun in to distribute and conspiracy in violation 21 U.S.C. § the bedroom closet would result in a 2-level increase in the 841(a)(1) and 846. For the reasons that follow, Petitioner's base offense level which would result in a sentence that motion will be dismissed in its entirety and issues raised in was 30 months longer. Trial counsel had no reason to Petitioner's motion will be certified for appeal. anticipate that the government would recommend a 2-level enhancement based on the finding of the shotgun where there had been no admission of the fact in the plea or FACTUAL AND PROCEDURAL HISTORY during the plea colloquy. U.S.C.A. Const. Amend. 6.

Petitioner was one of six defendants arrested on or about September 14, 2006, in connection with a large regarding sentencing? methamphetamine manufacturing and sales operation in Kern County. On July 5, 2006, and on July 27, 2006 police officers observed Petitioner transporting and MR. LoSTRACCO: Your Honor, I do have some delivering packages that together contained 222 grams of comments. material containing approximately 127 grams of methamphetamine. On September 14, 2006, officers executed a search on Petitioner's residence. From the THE COURT: Yes. bedroom of the residence, officers recovered about 960 grams of a mixture containing about 856 grams of actual methamphetamine. An unloaded shotgun and about MR. LoSTRACCO: Pursuant to the plea agreement and $82,000 in cash were found in a closet in the bedroom. the factual basis set forth in the plea agreement, we The cash was apparently located in a safe that was located would ask the court not to impose the two-level addition in the closet. as specified on pages 6 and 7 [of the Presentence

Investigation Report ("PIR") ], item number 18. The-with the shotgun found the defendant's closet. This Petitioner entered a plea of guilty on September 4, 2007, was not-I did not participate in the preplea negotiations. pursuant to a negotiated plea agreement. In the plea I wasn't attorney of record at the time of the plea. But in agreement and in the plea colloquy, Petitioner admitted his speaking with Mr. Garland, it's my understanding the participation in the conspiracy and admitted his offensive shotgun was never anticipated as being part of this plea conduct involved a total of 1749.8 grams of a substance and the factual basis. So I'd ask the Court not to impose containing a p p roximately 1 5 3 8.2 grams of that two-level increase. methamphetamine. The plea agreement also contained a comprehensive waiver of rights to appeal or to collaterally attack the sentence. In the plea agreement, the government *2 As to the rest, we would submit it on the pleadings. agreed to recommend a three-level reduction in the offense and to recommend sentencing at the bottom of the guideline range. Pertinent to this motion, neither the plea [¶... ¶] agreement or the plea colloquy contained any reference to THE COURT: On behalf if the Government? a dangerous weapon or to the possibility of any enhancement of the sentence based on the discovery of the shotgun that was found in Petitioner's bedroom closet. MS. SERVATIUS: Your Honor, the gun was not-the

Government did not agree that it would not recommend the gun, and it did not agree that the gun was not part of Petitioner was sentenced on December 10, 2007. At the the plea agreement. It just didn't discuss the gun in the sentencing hearing the following discussion was had: plea agreement. So it would appear that given the presence of the shotgun in the same master bedroom closet as where the safe was located, that had THE COURT: All right, on behalf of [Petitioner,] are approximately $82,000 in cash, it is not clearly probable there any additions or corrections or comments that the gun was related to the offense [sic]. The drugs in that residence were also stored in the bedroom. ¶ So The court imposed the sentence of 210 months based on that, the Government would ask that the imprisonment. Judgment was entered on December 13, [court] follow the recommendation of the probation 2007. No notice of appeal was filed. On December 31, office. 2007, Petitioner, through his attorney, filed a motion to reduce the sentence. That motion was voluntarily withdrawn on March 10, 2008, and the instant motion THE COURT: Let me turn back to the defense then. All I pursuant to 28 U.S.C. § 2255 (hereinafter the "2255 can say is the if there was no specific agreement, I do Motion") was timely filed on March 19, 2008. note that as defense counsel pointed out, that at page 6 [of the PIR] and [page] 7, paragraph 18, the factual basis for the enhancement has been set forth. I don't LEGAL STANDARD know if there is any dispute on that or any other issues that relate to that, but otherwise, it would appear that the Court would have to take that into consideration. 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 MR. LoSTRACCO: Yes your Honor. I was just pointing ground that the sentence was imposed in violation of the out that in the plea that defendant entered, there was Constitution or laws of the United States... may move the never any mention of the gun in the factual scenario in court which imposed the sentence to vacate, set aside or the plea agreement. The defendant never admitted to correct the sentence." Under section 2255, "a district court possessing that gun. And he was not home of the time of must grant a hearing to determine the validity of a petition that-if that makes any difference, but he was elsewhere brought under that section, '[u]nless the motions and the at the time of the search warrant [sic]. 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 THE COURT: Okay. But, again, that's all I have in front U.S.C. § 2255) (emphasis in the original). The court may of me. So I'll leave it to counsel, but otherwise, if I deny a hearing if the movant's allegations, viewed against applied it, then, the guideline range as indicated by the the record, fail to state a claim for relief or "are so probation office would apply. That the bottom of that palpably incredible or patently frivolous as to warrant would be the 210 months, and I would factor that in a summary dismissal." United States v. McMullen, 98 F.3d far as imposing a reasonable sentence, and it would 1155, 1159 (9th Cir.1996) (internal quotations omitted), otherwise appear that 210 months would be a cert. denied, 520 U.S. 1269, 117, 117 S.Ct. 2444, ----, 138 reasonable sentence. L.Ed.2d 203, ---- (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Anything further by the defense, then? Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 MR. LoSTRACCO: No, Your Honor. Submit it. U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

DISCUSSION whether scope of waiver precludes challenge based on language in the plea agreement). Courts generally enforce the literal terms of a plea agreement according to contract I. Waiver law standards, construing any ambiguities against the government. United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.2002); Cope, 527 F.3d at 944. "In *3 The threshold issue raised by Petitioner's 2255 Motion construing the agreement we must determine what [the is whether Petitioner's claims are barred by waiver. defendant] reasonably believed to be the terms of the plea Waivers limiting the right of a defendant to challenge his agreement at the time of the plea. Franco-Lopez, 312 F.3d sentence or conviction may arise either from the entry of at 989. an unconditional plea of guilty, see United States v. Floyd, 108 F.3d 202, 204 (9th Cir.1977) (an unconditional plea of guilty constitutes a waiver of the right to challenge "all Petitioner's plea agreement contains two terms that are non-jurisdictional antecedent rulings and cures all pertinent to the scope of the waiver. First, at section 2(c) antecedent constitutional defects"), or as the result of an of the Memorandum of Plea Agreement, Petitioner express waiver contained in the plea agreement. In the acknowledges: instant case, Petitioner expressly waived his rights to appeal or to collaterally attack his conviction or sentence as a part of his negotiated plea agreement. that although the government has indicated a sentencing range which may result from the agreements contained herein, the government makes no representations as to "A prisoner may not collaterally attack a judgment if the the [Petitioner's] criminal history category and that prisoner waived the right to do so." United States v. should other factors result in a recommended sentence Racich, 35 F.Supp.2d 1206, 1210 (S.D.Cal.1999). Subject which is higher than contemplated or forecasted by the to a few well established exceptions, courts in this circuit parties, such a sentence is not in violation of this will enforce a defendant's waiver of his right to challenge agreement and the [Petitioner] has no entitlement to a his conviction or sentence if (1) the language of the waiver lower sentence. encompasses the grounds upon which the challenge is asserted, and (2) "the waiver is knowingly and voluntarily made." United States v. Nunez, 223 F.3d 956, 958 (9th Doc. # 54 at 2. Second, with regard to waiver of statutory Cir.2000). The court will address these issues in order. rights of appeal and rights to collaterally attack his sentence or conviction, Petitioner agrees at paragraph 2(f) that he is:

A. Scope of Waiver aware that Title 18 of the United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging this, the defendant A defendant is not barred from asserting a post-conviction knowingly waives the right to appeal his conviction or challenge of his sentence or conviction on grounds that lie any sentence (or the manner in which that sentence was outside the scope of the waiver. See United States v. Cope, determined) which is within the statutory maximum for 527 F.3d 944, 949-950 (9 Cir.2008) (court determines the crime set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange constitutional or procedural defects where there is an for the concessions made by the United States in this unconditional plea of guilty apply here where the plea plea agreement. The [Petitioner] also waives his right to agreement was conditional. See States v. Jacobo Castillo, challenge his conviction, sentence or the manner in 496, 960 F.3d 947 (9th Cir.2007) (Callahan, J. dissenting) which it was determined in any post-conviction attack, ("The removal of pre-plea constitutional issues from a including but not limited to a motion brought under criminal proceeding stems from a defendants's admission Title 28 United States Code, Sections 2241 or 2255. of past conduct. It is the admission of guilt-not his waiver of trial rights-that moots any pre-plea challenges to his conviction because the validity of the conviction rests on *4 Doc.# 54 at 3-4. the voluntary admission of guilt, not on any pre-plea governmental conduct"). Clearly, the scope of Petitioner's waiver includes any defect arising prior to the entry of Direct appeal and collateral attack are post-conviction Petitioner's plea of guilty. procedures that must be separately and specifically waived. See United States v. Nunez, 223 F.3d 956, 959 (9 Cir.2000) (waiver of right to appeal " 'does not waive What is more problematic is the scope of the waiver with right to bring a 2255 motion' " unless such waiver is regard to conduct occurring after Petitioner's change of express). Here, Petitioner waived the right to challenge his plea. "conviction, sentence or the manner in which it was determined" in any motion brought under 28 U.S.C. § 2255. Thus the agreement to waive any challenge to the With regard to the right to challenge the sentence or "conviction, sentence or the manner in which it was conviction based on alleged conduct or defects occurring determined" informs the boundaries of the scope of after the plea, two competing interests are at play. On one Petitioner's waiver of the right to bring a collateral attack. hand, if the court finds the scope of a generalized express waiver-such as the one in this case-extends to alleged defects occurring after the plea agreement, the possibility Petitioner's 2255 Motion includes claims of ineffective is increased that the defendant may be surprised or assistance of counsel based on conduct by his attorney that "blind-sided" by the consideration of factors or conduct occurred both before and after the plea agreement. The not contemplated in the plea agreement. As a distinction between conduct occurring before or after the consequence, the defendant may be subjected to a harsher plea has some significance here in that Ninth Circuit sentence than anticipated without any recourse because his authority supports the proposition that an unconditional attorney fails to timely object to sentencing errors or to plea of guilty constitutes a waiver of the right to challenge timely move for the application of beneficial sentencing "all non-jurisdictional antecedent rulings and cures all considerations. antecedent constitutional defects." United States v. Floyd, 108 F.3d 202, 204 (9th Cir.1977). While Petitioner's plea of guilty is not unconditional, Petitioner's plea agreement *5 On the other hand, finality of the judgment is one of the does not reserve any rights to collaterally challenge his main benefits the government receives through the plea sentence or conviction. Thus, at minimum, the same bargaining process. United States v. Littlefield, 105 F.3d considerations that bar challenge to any antecedent 527, 530 (9th Cir.1997). If a generalized express waiver of rights to collaterally attack a sentence or conviction is Second, the contractually bargained-for benefit of finality confined to defects arising before the plea unless of judgment is a primary motivational force behind the otherwise specifically waived, the contractually government's willingness to engage in plea negotiations. bargained-for benefit of finality of the judgment is To leave the sentence or conviction open to challenge on jeopardized. It bears noting that what is actually at stake the basis of any allegation of procedural defect or in the tension between the interests of the accused to not ineffective assistance of counsel that occurs post-plea and be surprised by a harsher-than-anticipated sentence and was not specifically waived would risk making the finality the interests of the government in the finality of judgments of judgment-something that benefits both the government is the determination of which party should bear the burden and the courts-an illusory benefit. It benefits all parties, of anticipating issues that may arise in the future but have including defendants, if the government's motivation in not transpired at the time of the plea agreement. participating in plea bargaining is supported by the government's reasonable expectation that the court will give full effect to generalized express waivers of rights to As of this writing, the court is unable to find a case from mount post-conviction challenges based on both pre-plea this circuit that directly confronts the question of how and post-plea claims. broadly an express term in a plea agreement that generally waives rights to bring a collateral attack without reference to whether the alleged defect is pre-plea or post-plea *6 Third, such case authority as the court can find that precludes a habeas challenge based on either government bears upon the question of the scope of an express waiver conduct or ineffective assistance of counsel that occurs indicates that a general express waiver will bar post-plea. Three factors lead this court to the conclusion post-conviction challenge of a sentence even where the that the risk of surprise resulting from a grounds for the challenge were not foreseen at the time of harsher-than-expected sentence should rest primarily with the plea. For example, in United States v. Cortez-Arias, the defendant. First, as discussed below, a defendant's 425 F.3d 547, 548 (9th Cir.2005) (amending 403 F.3d exposure to a harsher-than-expected sentence is tempered 1111, 1114 n. 8 (9th Cir.2005)), the Ninth Circuit held by the fact that a waiver of rights to challenge a sentence that where the defendant "knowingly and voluntarily will not be enforced where the sentence is illegal. Id. at waived the right to appeal every aspect of his sentence, 528, or where the sentence is not in accordance with the except whether his earlier crimes were 'crimes of negotiated plea agreement. United States v. Bolinger, 940 violence,' " the right to appeal the application of a F.2d 478, 480 (9th Cir.1991). This means that the sentencing enhancement in violation of United States v. defendant will be entitled to challenge any sentence that is Ameline, 409 F.3d 1073 (9 Cir.2005) was waived. The in excess of any negotiated maximum and that the court held the government was entitled to the benefit of its statutory maximum sentence forms a solid backstop to the bargain notwithstanding that the defendant failed to degree to which the defendant's sentence may be enhanced foresee the specific issue at the time he entered into the without prior notice. With those safeguards in place, the plea agreement. Cortez-Arias, 425 F.3d at 548. In this risk that a generalized waiver of right to collaterally attack case, as in Cortez-Arias, the alleged underlying defect is a conviction or sentence will unduly prejudice a defendant that the Petitioner's sentenced was enhanced based on facts who finds himself surprised by the harshness of his not proven or admitted to in violation of Ameline and sentence is minimized. Booker. It appears to this court that Cortez-Arias, if not controlling, is certainly highly persuasive of the outcome in this case. assistance of counsel does not implicate the voluntariness of the plea agreement containing a waiver of right to collaterally attack where the ineffective assistance is

Based on the foregoing, the court concludes that the scope alleged after the plea agreement was signed). of Petitioner's waiver includes the right to challenge by way of habeas petition any aspect of his sentence including claims of sentencing error that occurred after the *7 Petitioner's first claim for relief alleges ineffective plea agreement was signed. assistance of counsel based on his attorney's failure to accurately inform petitioner of the probable sentence based on the amount of methamphetamine attributed to B. Knowing and Voluntary Petitioner and based on the failure to warn Petitioner that his sentence could be enhanced based on the finding of the shotgun in bedroom closet. Petitioner alleges that had he As previously noted, a waiver contained in a plea been adequately and accurately informed, he would not agreement is enforceable if the plea agreement was have entered a guilty plea. Since Petitioner's first claim for knowingly and voluntarily made. It follows that a relief alleges that his plea was not voluntary or knowing collateral attack that challenges the voluntariness of the based on his attorney's failure to accurately represent the appeal cannot be waived. Courts in this circuit have so consequences of the plea, the court will not enforce the held. See, e.g., United States v. Abarca, 985 F.2d 1012, waiver to the extent that it is necessary to resolve whether 1014 (9th Cir.1993). Pertinent to the issues raised here, Petitioner has alleged facts adequate to show the plea was the Ninth Circuit has observed that claims of ineffective not knowing or voluntary. assistance of counsel often implicate the validity of plea agreements that are secured through the efforts of the allegedly ineffective counsel, and has in the past expressed Petitioner's second, third and fourth claims for relief also some doubt that habeas claims of ineffective assistance allege ineffective assistance of counsel, but the ineffective can ever be considered waived. Washington v. Lampert, assistance is alleged to have occurred at sentencing; that 422 F.3d 864, 870 (9 Cir.2005) (citing United States v. is, after the plea agreement was executed. Petitioner's Pruitt, 32 F.3d 431, 433 (9th Cir.1994)). Thus, where the second claim for relief alleges ineffective assistance based right to challenge a sentence or conviction has been on his attorney's failure to raise a formal objection to the waived pursuant to a plea agreement, the waiver will not government's assertion that a two-level enhancement for be enforced where the challenge alleges ineffective possession of a dangerous weapon in connection with the assistance of counsel that implicates the voluntariness of crime should be applied. Petitioner's third claim for relief the plea agreement. On the other hand, the Ninth Circuit alleges ineffective assistance of counsel for failure to has indicated that, where there is a waiver of rights to arrange a "safety valve" interview, and the fourth claim for challenge a conviction or sentence by way of direct appeal relief alleges ineffective assistance of counsel for failure or collateral attack, the waiver will be enforced where the to inform of the right to appeal. Because each of these challenge alleges ineffective assistance of counsel that claims alleges ineffective assistance of counsel based on does not implicate the voluntariness of the waiver. See defects in representation that occurred after Petitioner United States v. Magueflor, 220 Fed.Appx. 603, 604-605, signed the plea agreement, the court follows Magueflor in 2007 WL 491153 (9 Cir.2007) (claim of ineffective concluding that the alleged ineffective assistance of counsel cannot render the plea agreement involuntary or represents the bottom of the guideline range for an offense unknowing. level of 32. The statutory maximum for violation of 21 U.S.C. §§ 841(a)(1) and 846 is a term of life imprisonment. Since Petitioner's sentence was less than the C. Other Exceptions to Enforcement of the Waiver statutory maximum and there is no allegation that it was otherwise illegally imposed, the sentence was not imposed in violation of the law.

Where an express waiver of right to collaterally attack a sentence or conviction incorporates the grounds the defendant asserts and where the waiver is knowing and The sentence also did not violate the terms of the plea voluntarily made, courts will nonetheless not enforce the agreement. The agreement cautions Petitioner that waiver where (1) the challenge alleges the plea was not "although the government has indicated a sentencing range taken in compliance with Rule 11 of the Federal Rules of which may result from the agreements contained herein, Criminal Procedure, (2) the court advises a defendant the government makes no representations as to the during the plea proceedings, without qualification, that he defendant's criminal history category and that should other or she has the right to assert an appeal or other factors result in a recommended sentence which is higher post-conviction challenge, (3) "the sentence imposed than contemplated or forecasted by the parties, such a violates the law," or (4) "the sentence is not in accordance sentence is not in violation of this agreement and the with the negotiated plea agreement." United States v. defendant has no entitlement to a lower sentence." Doc, # Jeronimo, 398 F.3d 1149, 1153 n. 2 (9th Cir.2005). In the 54 at ¶ 2(c). In exchange for accepting the risk of a higher instant case, there is no allegation that the plea was not sentence, Petitioner received a three-level downward taken in compliance with Rule 11 and there is no departure for acceptance of responsibility, the dismissal of allegation that Petitioner was advised during the plea that remaining charges and the government's recommendation he had a right to bring an appeal or other post-conviction to sentence at the bottom of the guideline range. Although challenge. The court will therefore briefly evaluate the last Petitioner may have been sentenced in consideration of a two exceptions. factor that was not contemplated at the time of the plea agreement, Petitioner knowingly accepted that risk and received the bargained-for benefit of the agreement. *8 Pursuant to 18 U.S.C. § 3742(a) a defendant may challenge his sentence notwithstanding any waiver of that right where the sentence "was imposed in violation of law" The court concludes that the waiver contained in or "was imposed as a result of an incorrect application of Petitioner's plea agreement is not rendered unenforceable the sentencing guidelines." For purposes of section by reason of illegality or failure to conform to the plea 3742(a), a sentence is not in violation of the law where the agreement. sentence is less than the statutory maximum and was otherwise legally imposed. Littlefield, 105 F.3d at 528.

Petitioner was sentenced to a total term of 210 months In sum, the court concludes that the waiver of right to counting a two-level enhancement for possession of the collaterally attack Petitioner's sentence is not enforceable shotgun and a three-level downward departure for with respect to Petitioner's first claim for relief because the acceptance of responsibility. The sentence of 210 months claim alleges conduct that implicates the voluntariness of the plea agreement. The court will therefore consider the acting as a diligent and conscientious advocate would merits of Petitioner's first claim for relief to the extent not have made." Butcher v. Marquez, 758 F.2d 373, 376 necessary to determine if Petitioner's states a sufficient (9th Cir.1985). To show prejudice, Petitioner must claim to warrant a hearing. The court further concludes demonstrate that "there is a reasonable probability that, that the waiver is enforceable with respect to Petitioner's but for counsel's unprofessional errors, the result of the second, third and fourth claims for relief. Those claims proceeding would have been different." Strickland v. will be dismissed as barred by waiver. In so ruling, the Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 court also recognizes that Petitioner has shown that jurists L.Ed.2d 674 (1984). In contemplating a plea agreement, of reason would find it debatable whether the petition the defendant's attorney "has the duty to advise the states a valid claim of the denial of a constitutional right defendant of the available options and possible and that jurists of reason would find it debatable whether consequences' and failure to do so constitutes ineffective the district court was correct in its ruling. Slack v. assistance of counsel." Beckham v. Wainwright, 639 McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603, 146 F.2d 262, 267 (5th Cir.1981)). To demonstrate L.Ed.2d 542 (2000). The court therefore concludes that ineffective assistance of counsel in the context of Petitioner is entitled to appeal the court's denial of his representation during consideration of a plea offer, a 2255 Motion with respect to the second, third and fourth defendant "must show that there is a reasonable claims for relief. The court will certify the relevant issues probability that, but for counsel's errors, he would not for appeal. have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

II. Ineffective Assistance of Counsel for Failure to Inform as to Possible Sentence

With respect to Petitioner's first claim for relief, Petitioner's claim of ineffective assistance of counsel has *9 Petitioner's first claim for relief alleges he suffered two component parts. First, Petitioner alleges ineffective ineffective assistance of counsel when his attorney assistance based on his attorney's alleged representation misinformed Petitioner that his likely exposure to prison that the term of imprisonment recommended by the would be ten to eleven years and failed to inform sentencing guidelines for the amount of methamphetamine Petitioner that he would be subject to an enhancement for charged to Petitioner is in the range of 121 months. possession of a dangerous weapon or because of the purity Second, Petitioner alleges he received ineffective of the methamphetamine involved. assistance of counsel because he was not informed by his attorney that the finding of the unloaded shotgun in the bedroom closet would result in a 2-level increase in the To establish a constitutional violation for the ineffective base offense level which would result in a sentence assistance of counsel, a defendant must demonstrate (1) approximately 30 months longer that it would otherwise a deficient performance by counsel, and (2) prejudice to be. him. United States v. Cochrane, 985 F.2d 1027, 1030 (9th Cir.1993). To prove a deficient performance of counsel, Petitioner must demonstrate that his attorney With regard to Petitioner's claim of ineffective assistance "made errors that a reasonably competent attorney based on his attorney's failure to accurately predict the extent to which his sentence would be enhanced based on 4862515 (D.Hawai'i 2008) at * 5; United States v. Coons, drug amount, Petitioner contends he admitted "trafficking 165 F.3d 918, 1998 WL 895357 (9th Cir., 1998) ("in in 1.5 kilograms of methamphetamine mixture relying on practical sense it is impossible for a court to inform a [his] lawyer's advice that [his] sentence would be 10-11 defendant of the minimum sentence available under the years." Doc. # 94 at ¶ 12. An examination of the plea Guidelines") The court finds that Petitioner was agreement reveals that Petitioner admitted to criminal adequately informed of his potential sentence and that conduct involving "a total of 1972.3 grams of a substance there are no facts to indicate that he was in any way (1.97 kilograms) containing 1663.8 grams of prejudiced by the any misinformation he may have methamphetamine (1.66 kilograms)." Even if the court received from his attorney warning him of the possibility presumes Petitioner formed the subjective expectation of of a sentence substantially longer than eleven years. a ten-to-eleven year sentence because his attorney misread or misunderstood the application of the sentencing guidelines to the amount of methamphetamine admitted, Petitioner's claim that he suffered ineffective assistance of such a subjective expectation is not sufficient to constitute counsel because his attorney did not warn Petitioner that a claim of ineffective assistance of counsel because his sentence could be enhanced because of the unloaded Petitioner cannot demonstrate prejudice arising from the shotgun that was found the bedroom closet fails simply misunderstanding. While Petitioner now maintains he because Petitioner cannot show that the failure to warn would not have entered a guilty plea had he been informed that the sentence could be enhance for based on that he was admitting an amount of methamphetamine that specific factor constitutes constitutionally deficient exposed him to a potential sentence in excess of 200 performance. Petitioner did not and cannot claim that he months, Petitioner fails to allege any facts that would lead was not cautioned that the sentence could be more severe the court to find that he would have declined the benefit of than anticipated based on the consideration of other the plea agreement in exchange for the opportunity to relevant conduct. Doc. # 54 at ¶ 2(c). Petitioner's attorney challenge the amount of drug involved. The amount of had no reason to anticipate that the government would drug involved is objectively ascertainable to a high degree recommend a two-level enhancement based on the finding of accuracy and in going to trial Petitioner would have lost of the shotgun in the closet where there had been no the opportunity for a three level downward departure for admission of the fact in the plea or during the plea acceptance of responsibility. colloquy. It is elementary that the adequacy of an attorney's advice to a defendant regarding a plea agreement is based on what is known or should reasonably *10 Case authority from the Ninth Circuit indicates that have been known to the attorney at the time the agreement where a defendant is informed by the court as to is signed. Since Petitioner's attorney had no reason to applicable mandatory minimum and maximum sentences, anticipate that there would be a recommendation for a the advisory nature of the sentencing guidelines and the two-level enhancement, his failure to so warn Petitioner possibility that the sentence imposed could be more severe cannot constitute ineffective assistance of counsel. than anticipated, the defendant is adequately informed and the failure of the defendant's counsel to warn of the possibility of a more severe sentence is not ineffective The court finds Petitioner's first claim for relief is without assistance. See, e.g., U.S. v. Chavez, 40 Fed.Appx. 482, merit and will accordingly dismiss that claim. As 484 (9th Cir.2002); Sigouin v. United States, 2008 WL previously discussed, the court finds Petitioner's second, third, and fourth claims for relief are barred by waiver. In E.D.Cal.,2009. so finding, the court makes no representations as to the Soto v. U.S. merits of Petitioner's underlying claims of ineffective Slip Copy, 2009 WL 1862454 (E.D.Cal.) assistance of counsel. If this court is to address the merits of Petitioner's underlying claims of ineffective assistance of counsel, Petitioner will need to secure a reversal of this END OF DOCUMENT court's ruling on the issue of waiver by the Ninth Circuit Court of Appeals.

CONCLUSION AND ORDER

*11 Based on the foregoing discussion, the four claims for relief set forth in Petitioner's 2255 Motion are each found to be without merit. Petitioner's 2255 Motion is therefore DISMISSED in its entirety. The Clerk of the Court shall CLOSE the CASE. Also pursuant to the foregoing discussion, the court hereby CERTIFIES the following issues for appeal:

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?

IT IS SO ORDERED.

20090928

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