FINDINGS AND RECOMMENDATIONS
Movant Miguel Angel Garcia is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Movant seeks post-conviction relief on the grounds that: (1) a 1995 United States Attorney General Memorandum addressing the U.S. Sentencing Guidelines allows for a one to two-level downward departure from the applicable sentencing range if a non-citizen accepts a final deportation order; and (2) a non-citizen is subject to a harsher sentence of imprisonment in violation of the Equal Protection Clause, the Due Process Clause, and the "Equal Rights Act."*fn1
For the reasons stated below, the court recommends that the motion be denied.
On September 7, 2007, movant entered a plea of guilty pursuant to a plea agreement, to illegal re-entry in violation of 8 U.S.C. § 1326 and making false statements in application for a passport in violation of 18 U.S.C. § 1542. (Answer, Ex. 1 - Plea Agreement at 1.) On December 7, 2007, the court sentenced movant to the custody of the United States Bureau of Prisons for a term of 46 months, a three year term of supervised release, and a $200 special assessment. (Answer, Ex. 4 - Judgment at 1-6.)
Under the plea agreement entered by the parties, the government agreed to recommend a sentence at the low end of the applicable guideline sentencing range as that range was determined by the court, not to oppose a three level reduction in movant's offense level for acceptance of responsibility under U.S.S.G. § 3E1.1, and not to recommend a fine in light of movant's inability to pay a fine. (Answer, Ex. 1 - Plea Agreement at 3-4.) In exchange, movant specifically agreed to "give up the right to appeal the conviction and the right to appeal any aspect of the sentence imposed in this case so long as his sentence is no longer than the top of the Sentencing Guidelines range determined by the Court consistent with the stipulations set forth above about the Sentencing Guidelines variables (that is, an adjusted offense level of 21 or below) ." (Id. at 8.) By entering the plea agreement movant also agreed to waive "any right he may have to bring a post-conviction attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence." (Id.) (emphasis added.)
Movant filed his pending § 2255 motion on November 20, 2008. On March 12, 2009, the Government filed a response, requesting that the court deny the motion.
A motion to vacate, set aside, or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds . . . there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 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); United States v. Burrows, 872 F.2d 915, 917 (9th Cir.1989). 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, 877, 879 (9th Cir.2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). While a petitioner is not required to allege facts in detail, he must make factual allegations. Hearst, 638 F.2d at 1194. Accordingly, an evidentiary hearing is only 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.
I. Waiver of § 2255 Rights in Plea Agreement
A plea agreement is a contract and subject to contract law standards. United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001). In a plea agreement, a defendant may waive his right to file a motion for relief under 28 U.S.C. § 2255 if done so expressly. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). The right to collaterally attack a judgment of conviction pursuant to § 2255 is statutory, and a knowing and voluntary waiver of a statutory right is enforceable. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.), cert. denied, 546 U.S. 883 (2005); United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); United States v. Racich, 35 F. Supp. 2d 1206, 1210 (S.D. Cal. 1999).*fn2
As noted above, in his plea agreement in the underlying criminal case movant expressly waived his right to collaterally attack his sentence through a § 2255 motion. (Answer, Ex. 1 - Plea Agreement at 8.) Moreover, in his motion pending before the court movant does not dispute that this waiver was made knowingly and voluntarily.*fn3 Nor does movant claim that he received ineffective assistance from his trial counsel, which might otherwise undermine the knowing or voluntary nature of his plea agreement. Accordingly, movant's waiver of his right to collaterally attack his judgment and sentence pursuant to § 2255 is enforceable and precludes consideration of his claims. Nguyen, 235 F.3d at 1182; Abarca, 985 F.2d at 1014. His motion brought pursuant to 28 U.S.C. § 2255 should therefore be denied.
Accordingly, it is hereby ...