The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT
On April 26, 2010, pursuant to the "mailbox rule," Petitioner Fernando Ponce Garcia, proceeding in pro per, filed a motion entitled "Pro Se Nunc Pro Tunc Motion Based on Defendant's 'Actual Innocence Claim' in Behalf of the Illegal Sentence Enhancement, Pursuant to 18 U.S.C. § 924(c)(a) (Possession of a Firearm in Furtherance of a Drug Trafficking Crime)."
By Memorandum Decision and Order filed on May 28, 2010 ("May 28 Memorandum Decision"), the Court construed Petitioner's motion to be a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The Court stated:
Petitioner is advised that the recharacterization of his pleadings as a motion for relief pursuant to 28 U.S.C. § 2255 has potential adverse consequence to him. Motions pursuant to Section 2255 are subject to a one-year limitation period. Any claims for relief based on the conviction or sentence brought after the expiration of that one-year period may be barred unless facts demonstrating equitable tolling are established. Further, if all claims for relief pursuant to Section 2255 are not brought in a single motion, subsequently asserted claims may be barred as "second or successive" unless prior authorization from the Court of Appeal is obtained.
Petitioner was ordered to file a pleading advising whether or not he consents to the recharacterization of his motion as a Section 2255 motion.
On June 18, 2010, Petitioner filed an "Amended 28 USC § 2255 'Pro Se Supplemental' Motion." Petitioner requests that the Court construe both motions as a motion to correct, vacate or set aside sentence pursuant to Section 2255.
Petitioner was charged with conspiracy to distribute and possess methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846 (Count One); possession of methamphetamine with intent to distribute in violation of Sections 841(a)(1) and (b)(1)(A) (Count Two); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three).
On September 15, 2008, Petitioner pleaded guilty pursuant to a written Plea Agreement to Counts One and Three Petitioner was assisted by court certified interpreter in the Spanish language S. Suaya.
The Presentence Investigation Report recommended a sentence of 168 months as to Count One and 60 months as to Count Three to be served consecutive to the sentence imposed on Count One, for a total term of imprisonment of 228 months. Petitioner was sentenced on December 8, 2008. Petitioner was assisted by the court certified interpreter in the Spanish language, R. Lucero.
Petitioner was sentenced to 168 months as to Count One and 60 months as to Count Three, to run consecutive to Count One. The Judgment provides:
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 228 months (with 168 months custody as to count 1 and 60 months custody as to count 3 which will run consecutive to count 1).
In his motion filed on April 26, 2010, Petitioner asserts:
[H]e "did not at anytime Understand anything that Counsel 'Michael J. McGinnis' and the 'Court Appointed Interpreter' stated, nor did Defendant 'Understand the Plea Agreement' nor the 'Presentence Investigation Report' in which all Counsel 'Michael J. McGinnis' and the 'Court Appointed Interpreter' made Defendant understand was 'sign paper, get 14 years' and 'go back to Mexico', in which that is all that Defendant understood, in which Defendant kept trying to explain that 'He (Defendant) did not have anything to do with drugs, but no one would listen, because the Counsel and Interpreter did not understand Defendant.
Defendant would like the record to reflect that Defendant is a Mexican Immigrant that did not have the ability to learn and Defendant's understanding is very limited to American born Mexicans and not one time did Counsel or Interpreter explain to the point that Defendant understood that Defendant would receive 14 years and 5 years, Defendant was only under the impression that Defendant would get 14 years and have to go back to Mexico, it wasn't until January 11, 2010, that Defendant was informed (by the Federal Bureau of Prisons 'United Team Staff' here at 'FCC Coleman-Medium Prison') that Defendant is serving a 228 month prison sentence (19 years), in which the 'United Team Staff') told Defendant that Defendant was serving a 168 (14 years) for Count One (Conspiracy to distribute and possess methamphetamine with the intent to distribute) and a 60 month (5 years) running consecutive for Count Three (Possession of firearm in furtherance of a drug trafficking crime) in which is a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and 846, and 18 U.S.C. § 924(c)(1)(A), in which Defendant did not know about the '60 months (5 years) running consecutive', in which Defendant only signed a sheet of paper with no understanding of what Defendant was signing.
In his motion filed on reiterates that he did not understand the Court appointed interpreters, that the Court appointed interpreters "did not explain to the District Court that Defendant 'did not understand anything but sign paper, get 14 years, go back to Mexico," and that Petitioner "did not understand the 'Plea Agreement' or the 'Presentence Investigation Report,' and Defendant was completely 'Mislead' by the 'Court Appointed Interpreter to sign that 'Plea' because No One Explain about Defendant would have a 19 year sentence, the only thing that Defendant was told, was 'sign paper, get 14 years, and go back to Mexico.'"
Section 2255 provides that a one-year period of limitation applies to a Section 2255 motion, which limitation period runs from the latest of:
(1) the date on which the judgment of conviction became final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Here, Petitioner's conviction and sentence became final on December 19, 2008. Petitioner's motion was not filed until April 26, 2010. However, Petitioner asserts that he was not aware of the exact term of his sentence until January 11, 2010, when he was told by Bureau of Prisons staff that his sentence totaled 228 months rather than 168 months.
Petitioner specifically waived any right to collaterally attack his conviction or sentence pursuant to Section 2255 in the Plea Agreement. Because a plea agreement is contractual in nature, its plain language will be enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.), cert. denied, 546 U.S. 883 (2005). The only claims that cannot be waived are claims that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.2005), cert. denied, 547 U.S. 1074 (2006).
Here, Petitioner contends that his guilty plea was involuntary because counsel and the court certified Spanish interpreter did not accurately relate the terms of the Plea Agreement concerning Petitioner's sentence. Petitioner makes no claim that the waiver of his ...