FINDINGS AND RECOMMENDATIONS
Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Movant claims that he received ineffective assistance of trial counsel and that the "Federal Government" was without subject matter jurisdiction to prosecute him under 8 U.S.C. § 1326. In opposing the motion for relief, respondent asserts that movant is procedurally barred from pursuing this relief because he expressly waived his right to appeal or collaterally attack his sentence and conviction as part of his plea agreement. Respondent also argues that movant's claims are without merit.
Having considered all the papers filed by the parties and the record in this action, for the reasons set forth below, the court will recommend that the motion be denied.
On April 19, 2005, a criminal complaint was filed against movant, alleging that he illegally re-entered the United States following his deportation in violation of 8 U.S.C. § 1326. (Doc. No. 1.) Movant's initial appearance before the court took place that same day and a preliminary hearing was scheduled for May 3, 2005. (Doc. No. 2.) On April 28, 2005, a federal grand jury for the Eastern District of California indicted movant on a violation of 8 U.S.C. § 1326. (Doc. No. 4.) On May 3, 2005, movant was arraigned on the indictment and a jury trial was set for June 27, 2005.*fn1 (Doc. No. 6.)
On June 9, 2005, the parties stipulated that the scheduled jury trial be vacated so that the parties could have "additional time to confer about a proposed plea agreement and [to] investigate this case." (Doc. No. 8.) On June 23, 2005, the parties filed a plea agreement for the court's consideration. (Doc. No. 9.) That same day movant withdrew his previously entered plea of not guilty and entered a new plea of guilty to the charge.*fn2 (Docket No. 10.) Pursuant to his plea, and in keeping with his plea agreement, movant was sentenced to the custody of the U.S. Bureau of Prisons for a 51-month term of imprisonment. (Id.)
On December 14, 2005, movant appealed his conviction to the Ninth Circuit Court of Appeals. (Doc. No. 13.) That court dismissed movant's appeal for lack of jurisdiction, citing Federal Rules of Appellate Procedure 4(b)(1)(A) (providing that notice of appeal must be filed within 14 days.) (Doc. No. 21.)
On August 28, 2006, movant filed his § 2255 motion with this court to vacate, set aside, or correct his sentence on his own behalf. (Doc. No. 22 (hereinafter "Motion").) Respondent filed a response opposing the motion on November 8, 2006. (Doc. No. 26 (hereinafter "Response").) Petitioner filed a traverse, styled as a "Reply to Plaintiff's Response" on November 22, 2006. (Doc. No. 27 (herein after "Reply").)
Movant alleges that he received ineffective assistance from his trial counsel. He argues that his counsel failed to "investigate the law" and thereby failed to discover that "for the failure of Congress passing" 8 U.S.C. § 1326, the trial court did not have "subject matter jurisdiction" over his criminal prosecution. (Motion at 4.)*fn3 Movant also challenges in a general fashion "the legality of his conviction and sentence" based on his argument that the "Federal Government was without subject matter jurisdiction" because § 1326 was "never properly enacted." (Id. at 5.)
A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 filed in the court which imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution of laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
In reviewing a motion brought pursuant to § 2255, a federal court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S. C. § 2255. See also United States v. ZunoArce, 339 F.3d 886, 889 (9th Cir. 2003). However, to be entitled to an evidentiary hearing the movant must provide specific factual allegations which, if true, state a claim on which relief under § 2255 could be granted. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003); United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
As noted above, both of movant's claims involve the assertion that there was some defect with the applicable criminal statute, 8 U.S.C. § 1326, that prohibited his prosecution. In addition to opposing movant's claims on the merits, respondent argues that movant is procedurally barred from asserting his second claim for relief. The court ...