ORDER AND FINDINGS & 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 from his trial counsel. Respondent has filed a response to the motion requesting that the court grant movant's motion, re-enter judgment without a hearing, and allow movant to proceed on appeal.
For the reasons set forth below, the court will recommend that movant's motion be granted.
On August 17, 2005, a criminal complaint was filed in this court alleging that movant knowingly and intentionally distributed fifty grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 1.) Movant's initial appearance before the court took place on August 18, 2005, and the Office of the Federal Defender was appointed to represent him at that time. (Doc. No. 4.) On September 15, 2005, a federal grand jury for the Eastern District of California indicted movant on two counts of distributing methamphetamine and one count of possession of methamphetamine with the intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 10.) On September 16, 2005, movant was arraigned on the indictment. (Doc. No. 12.) On December 8, 2005, at movant's request his appointed counsel was relieved and retained counsel was permitted to substitute in to represent movant. (Doc. No. 18.)
On May 19, 2006, the parties filed a plea agreement for the district court's consideration. (Doc. No. 26.) 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 one count of possession of methamphetamine with the intent to distribute. (Doc. No. 26.) Under the terms of the plea agreement movant specifically waived his right appeal or collaterally attack his judgment of conviction. (Id.) On November 17, 2006, in keeping with the terms of the plea agreement, movant was sentenced to the custody of the U.S. Bureau of Prisons for the mandatory minimum term of 120-months for his conviction on count three of the indictment charging him with possession with the intent to distribute at least fifty grams (actual) of methamphetamine and the government moved to dismiss the remaining two counts in which movant was charged with distributing methamphetamine. (Doc. No. 35.)
On September 18, 2007, movant filed this § 2255 motion with this court on his own behalf seeking to vacate, set aside, or correct his sentence on his own behalf. (Doc. No. 37 (hereinafter "Motion").) On November 28, 2007, respondent filed a response requesting that the court grant movant's motion, re-enter judgment without a hearing, and allow movant to proceed on appeal. (Doc. No. 52 (hereinafter "Response").) On July 15, 2010, the undersigned appointed counsel to represent movant in these § 2255 proceedings and directed newly-appointed counsel to determine whether movant wished to proceed with this action in light of the response filed by respondent and to report movant's intention to the court. (Doc. No. 56.)*fn1 On October 6, 2010, movant's appointed counsel John Balazs filed a statement with the court indicating that counsel had discussed the government's response with movant and that movant wished to proceed with this action. (Doc. No. 60.)
Movant alleges that he received ineffective assistance from his retained trial counsel. In this regard, movant asserts that his retained trial counsel failed to file an appeal from his judgment and sentencing despite movant's request that his counsel do so. (Motion at 4-8.)*fn2
Movant asserts that he specifically requested that his trial counsel file an appeal raising issues related to movant's failure to receive a three-level downward adjustment in his offense level based on his acceptance of responsibility and because movant believed he complied with "all the requirements of [the] safety valve."*fn3 (Movant's Decl. (Doc. No. 40.) at 2.) Movant claims that his retained trial counsel assured movant that he would file a notice of appeal but never did. (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).
A plea agreement is a contract and subject to contract law standards. United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001). "'A defendant's waiver of his appellate rights is enforceable if the language of the waiver encompasses his right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made.'" United States v. Watson, 582 F.3d 974, 986 (9th Cir. 2009) (quoting United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004). The Ninth Circuit regularly enforces knowing and voluntary waivers in criminal cases where the waivers are part of ...