The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RE MOTION TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE PURSUANT TO 28 U.S.C. §2255
On June 2, 2005, Petitioner Fabian Silva-Romero was indicted for violating 8 U.S.C. §1326, being a deported alien found within the United States without having obtained the consent of the U.S. Attorney General or the Secretary of the Department of Homeland Security. Doc. 7.*fn1 Petitioner was represented by Ann Voris, an attorney with the federal defender's office. Doc. 6. On July 29, 2005, the parties lodged a plea agreement with the court. Doc. 12. A draft presentence investigation report ("PIR")*fn2 was prepared by the U.S. Probation Office and made available July 12, 2005. At a hearing on August 8, 2005, Petitioner plead guilty and was sentenced to 51 months imprisonment with 36 months supervised release. Doc. 13. Judgment was issued August 11, 2005. Doc. 14. No direct appeal was filed. Petitioner filed his Section 2255 habeas petition on January 24, 2006. Doc. 15.
Title 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." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). Under Section 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 petitioner'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), citations omitted. 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).
Petitioner sets out four grounds for relief: (1) "The Conviction was obtained by Plea of guilty unlawfully induced or with understanding of the nature of the charge and consequences of the Plea," (2) "Denial of effective Assistance of Counsel," (3) "The PSI Report was over represented and the Probation Officer failed to mention the mitigating circumstances that could warrant a Downward Departure," and (4) "The Defendant Plead Guilty to a violation of 8 U.S.C. 1326 that guarantees a statutory maximum penalty of not more than 2 years." Doc. 15, Petition, at 4 and 8. For ease of presentation, the court addresses the issues out of order.
Petitioner alleges it was error for the U.S. Probation Office not to mention any mitigating circumstances in the PIR. As part of the plea agreement, Petitioner also agreed to the following:
The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal any sentence imposed. Acknowledging this, the defendant knowingly and voluntarily agrees to waive all Constitutional and statutory rights to appeal his conviction and sentence, including, but not limited to an express waiver of appeal of this plea (including any venue and statute of limitations issues) and to attack collaterally his mental competence, and his plea, or his sentence, including but not limited to, filing a motion under 28 U.S.C. §2255, or 28 U.S.C. §2241, or 18 U.S.C. §3742, or otherwise. Doc. 12, Plea Agreement, at 3:15-25. "The right to attack a judgment collaterally is statutory. A knowing and voluntary waiver of a statutory right is enforceable. For this reason a prisoner may not collaterally attack a judgment if the prisoner waived the right to do so." United States v. Racich, 35 F. Supp.2d 1206, 1210 (S.D. Cal. 1999), citations omitted. The standard mirrors waiver of direct appeal rights: "A defendant's right to appeal is statutory, rather than constitutional, in nature. Knowing and voluntary waivers of appellate rights in criminal cases are regularly enforced. The sole test of a waiver's validity is whether it was made knowingly and voluntarily." United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000), citations omitted. In the plea colloquy, Petitioner specifically agreed that he was waiving his right to attack his conviction and sentence collaterally. Thus, Petitioner's allegations of incorrect sentencing are waived.
Further, Plaintiff received the PIR on July 12, 2005. He agreed to a plea agreement with the prosecution on July 29, 2005. His plead guilty and was sentenced on the same day (August, 8, 2005). During sentencing he made no objection to the PIR.
B. Ineffective Assistance of Counsel and Invalid Plea
Petitioner's ineffective assistance of counsel and invalid plea arguments cover the same substantive ground. Petitioner has challenged the validity of his waiver by claiming that guilty plea was the result of his attorney's ineffective assistance in failing to fully inform Petitioner of all of his rights and that his plea was illegally induced. A waiver of habeas rights can not bar a claim that relates to the validity of the waiver itself. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). 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 not normally considered waived by plea agreements. United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996), citations omitted. To establish a constitutional violation for ineffective assistance of counsel, a defendant must demonstrate (1) a deficient performance by counsel, and (2) prejudice to him/her. United States v. Cochrane, 985 F.2d 1027, 1030 (9th Cir. 1993). To prove a deficient performance of counsel, Petitioner must demonstrate that counsel "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate ...