UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 25, 2010
DEMETRIO MIGUEL SOSA, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR REDUCTION OF SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Doc. 31]
On October 23, 2008, Petitioner Demetrio Miguel Sosa pled guilty to one count of importation of methamphetamine in violation of 21 U.S.C. §§ 952 & 960. This Court sentenced Petitioner on February 13, 2009. On October 23, 2009, Petitioner filed the present motion for reduction of sentence pursuant to 28 U.S.C. § 2255. The Government has filed a response to the motion, and Petitioner has filed a reply. After reviewing the motion, opposition, reply, and all supporting documents and the record on file herein, the Court denies the motion.
Petitioner is "dissatisfied with his sentence" and contends he did not receive a two level reduction from his base offense level. However, when Petitioner pled guilty in exchange for a lower sentence, he waived his right to collaterally attack his sentence. (See Docket No. 19 at 11.) Such waiver bars Petitioner's claim under § 2255. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
Plaintiff further contends he received ineffective assistance of counsel because his attorney failed to file a Notice of Appeal. The waiver does not necessarily bar his ineffective assistance of counsel claim. Abarta, 985 F.2d at 1014. Generally, however, an ineffective assistance claim survives waiver "only when the claimed assistance directly affected the validity of that waiver or the plea itself." See United States v. White, 307 F.3d 336, 3443 (5th Cir. 2002). Here, Petitioner does not contend the waiver was invalid.*fn1
Morever, a Section 2255 motion alleging ineffective assistance of counsel must show: (1) Petitioner's counsel's performance "fell below an objective standard of reasonableness" guaranteed by the United States Constitution, and (2) there is a "reasonable probability" that Petitioner was prejudiced as a result of counsel's errors. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Petitioner cannot meet this standard. His counsel's failure to file a Notice of Appeal is not objectively unreasonable because Petitioner was not entitled to appeal under the plea agreement. Accordingly, Petitioner's motion is denied.*fn2
IT IS SO ORDERED.