The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART § 2255 MOTION
Defendant Donald Manning ("Defendant" or "Manning") has filed a motion to vacate, set aside, or reduce his sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Defendant's motion is GRANTED IN PART and DENIED IN PART.
On May 11, 2006, a federal grand jury in the Southern District of California returned a twelve-count Indictment charging Cameron Campbell, Joseph Wayne McCool, and Donald Manning with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 371, and eleven counts of wire fraud in violation of 18 U.S.C. § 1343.
After being arrested in Nicaragua, Manning made his first appearance in the case on February 28, 2008.
On January 16, 2009, Manning entered a plea of guilty to Count 1 (conspiracy) and Count 11 (wire fraud) pursuant to a Plea Agreement. (Gov't Ex. 1.) The Plea Agreement sets forth the factual basis for the guilty plea -- i.e., facts regarding (1) Manning's participation in a conspiracy with McCool and Campbell to induce investors to invest money in The Brixon Group Ltd. by making fraudulent representations and failing to disclose material facts; and (2) Manning's involvement in causing the wire transfer of $71,745.55 (the retirement funds of James and Shirley Peterson) from outside California to Campbell's Attorney Client Trust Account located in San Diego, California, for investment in Brixon. (Plea Agreement, § 2.B.)
Under the terms of the Plea Agreement, Manning agreed to waive any right to appeal or to collaterally attack the conviction and sentence, provided the Court imposed a custodial sentence no greater than the high-end of the guideline range recommended by the Government pursuant to the Plea Agreement at the time of sentencing. (Plea Agreeement, § XI.)
At sentencing, the Court determined that Manning had a Criminal History Category of I and an adjusted offense level of 26. The Court rejected the Government's argument that the Court should impose a two-level enhancement under USSG § 2B1.1(b)(8)(A) for alleged misrepresentations by Manning that he was "acting on behalf of" a charitable organization. The Court sentenced Manning to 63 months, the low-end of the guideline range.
In his § 2255 motion, Manning claims that the judgment should be set aside because
(1) he was denied effective assistance of counsel in connection with entering the guilty plea;
(2) he was denied effective assistance of counsel because his attorney refused to file a Notice of Appeal even though Manning requested that he do so; (3) his rights to a jury trial and due process were denied because his sentence was enhanced based on facts not found by a jury beyond a reasonable doubt; and (4) he is factually innocent.
A waiver of appeal and/or collateral attack of a conviction is enforceable if voluntarily made. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). If ineffective assistance of counsel renders the plea agreement containing the waiver involuntary, the defendant may appeal or collaterally attack his sentence. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that "a plea agreement that waives the right to file a federal habeas petition under 28 U.S.C. § 2254 is unenforceable with respect to an ineffective-assistance-of-counsel claim that challenges the voluntariness of the waiver"). See also Pruitt, 32 F.3d at 433 (expressing "doubt" that such a waiver could be enforceable in a § 2255 context).
Manning claims that he did not knowingly and voluntarily enter into the Plea Agreement because defense counsel "misled" him as "to the potential punishment he was facing" to scare him into entering into the plea, failed to advise him of his rights and the burdens that are placed on the government, misled him regarding the likely outcome if he availed himself of his jury rights, and failed to expressly advise him that he had a right to attack his sentence on direct appeal and collateral attack and that such rights might be foreclosed by the Plea Agreement. With respect to Manning's claims that his counsel somehow misled him regarding what might happen if he went to trial, Manning does not provide any details regarding what his attorney said. Therefore, the Court cannot conclude that his attorney gave him inaccurate or misleading advice. As for Manning's claims that his attorney failed to advise him of his various rights and ...