FINDINGS AND RECOMMENDATIONS
Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Therein, movant claims that he received ineffective assistance of trial counsel. Respondent has filed a motion to dismiss arguing that movant is procedurally barred from pursuing this relief because he expressly waived his right to collaterally attack his sentence and conviction as part of his plea agreement in this action.*fn1 Movant has filed an opposition to respondent's motion.
For the reasons set forth below, the court will recommend that respondent's motion be granted and that movant's motion be denied.
On February 11, 2005, a criminal complaint was filed against movant, alleging that he conspired to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846. (Doc. No. 1.) Movant's initial appearance before the court took place on February 16, 2005, with counsel specially appearing on his behalf. (Doc. No. 2.) On March 3, 2005, a federal grand jury for the Eastern District of California indicted movant. (Doc. No. 9.) On that same day movant was arraigned on the indictment and counsel was appointed to represent him. (Doc. No. 12.)
On April 6, 2006, movant's appointed counsel was relieved and new counsel was appointed to represent movant. (Doc. No. 71.) On April 28, 2006, movant filed a pro se motion again seeking the appointment new counsel on his behalf. (Doc. No. 82.) At a hearing on May 3, 2006, however, movant agreed that he was satisfied with his appointed counsel and requested that his motion for appointment of new counsel be dropped from calendar. (Doc. No. 87.) On September 26, 2006, movant filed a pro se request seeking an extension of the deadline for the filing of motions to allow him time to retain new counsel. (Doc. No. 119.) On December 6, 2006, retained counsel substituted into the case on behalf of movant. (Doc. No. 136.) Finally, on September 4, 2007, after numerous motions hearings, the parties filed a plea agreement for the court's consideration. (Doc. No. 222.) That same day and pursuant to the plea agreement movant withdrew his previously entered plea of not guilty and entered a new plea of guilty to Counts II and III of the Second Superceding Indictment in which he was charged with possession of pseudoephedrine and maintaining a drug-involved premises in violation of 21 U.S.C. §§ 841(c)(2) and 856. (Doc. No. 221.) On April 28, 2008, in keeping with the terms of his plea agreement, movant was sentenced to the custody of the U.S. Bureau of Prisons for a 240-month term of imprisonment. (Doc. No. 250.)
On February 17, 2009, movant filed his § 2255 motion with this court to vacate, set aside, or correct his sentence on his own behalf. (Doc. No. 260 (hereinafter "Motion").) Respondent filed a motion to dismiss on May 8, 2009. (Doc. No. 266 (hereinafter "MTD").) Movant filed an opposition to respondent's motion on September 28, 2009. (Doc. No. 268 (herein after "Opposition").)
Movant alleges that he received ineffective assistance from his trial counsel. In this regard, he argues that his counsel failed to inform the government of movant's desire to "cooperate" in exchange for "a favorable sentencing recommendation." (Motion at 4.)*fn2 Movant also asserts that the government initially offered a "five-year deal" and that his trial counsel advised him not to accept that plea offer because counsel believed the longest sentence movant could receive was one involving four-years imprisonment. (Id.)
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).
Respondent argues that movant is procedurally barred by the terms of the plea agreement from seeking relief pursuant to 28 U.S.C. § 2255. (MTD at 1-3.) Respondent argues that dismissal of movant's motion "is necessary for the United States to get the benefit of the bargain it negotiated in the Plea Agreement" and asks that this court "stay briefing on the merits until the ...