ORDER DIRECTING PETITIONER TO CLARIFY PLEADING AND FILE WAIVER OF ATTORNEY-CLIENT PRIVILEGE (28 U.S.C. § 2255) Document No. 15
On February 16, 2010, petitioner Francisco Peralta-Quintana ("Petitioner") filed a motion to vacate , set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (the "2255 Motion"). Petitioner was convicted by plea of guilty of one count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2) on May 26, 2009, and was sentenced at the same proceeding to a 37-month term of imprisonment. Judgment was entered on May 29, 2009. The instant 2255Motion was timely filed on February 16, 2010.
A "Pre-Plea Advisory Guideline Presentence Investigation Report" ("PIR") was prepared in advance of Petitioner's change of plea and sentencing hearing. The PIR indicated a total offense level of 21, which included a three-level reduction for acceptance of responsibility, and a criminal history category of IV. The PIR indicated that the guideline range for an offense level of 21 and criminal history category of IV is 57 to 71 months. At sentencing the government recommended an additional four-level downward adjustment for "early disposition" of Petitioner's case pursuant to U.S.S.G § 5K3.1. Pursuant to the government's recommendation, the court sentenced Petitioner to a term of imprisonment of 37 months, which represents the low end of the guideline range for an offense level of 17 and a criminal history category of IV.
Among other agreements set forth in the Plea agreement, Petitioner agreed "not to move for a downward departure or reduction of his sentence beyond the four (4) level departure agreed to by the government under this plea agreement pursuant to U.S.S.G. § 5K3.1. The [Petitioner] understands and agrees that this agreement by him includes, but is not limited to, not moving for a downward departure of his offense level, criminal history category, or criminal history points as defined by the United states Sentencing Guidelines." Doc. # 12 at 3:2-9. In addition, Petitioner agreed to waive all constitutional and statutory rights to appeal, including the right to direct appeal and the right to "attack collaterally his mental competence and his plea, or his sentence, including but not limited to, filing a motion under 28 U.S.C. § 2255, 28 U.S.C. § 2241, or 18 U.S.C. § 3742, or otherwise. Id. at 3:17-24. Of some significance, Petitioner also agreed that if he "ever attempts to vacate his plea, dismiss the underlying charges, or reduce or set aside his sentence on any of the counts to which he is pleading guilty, the government shall have the following rights: (1) to prosecute the [Petitioner] on any count to which he pleaded guilty; (2) to reinstate any counts that may be dismissed under this agreement; and (3) to file any new charges that would otherwise be barred by this agreement." Id. at 3:24 - 4:2.
Section 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (internal quotations omitted), cert. denied, 520 U.S. 1269, 117 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981).
Petitioner's 2255 Motion alleges four grounds for relief. All are somewhat difficult to understand, but the second and third grounds appear to allege various aspects of the same general claim that Petitioner's attorney provided ineffective assistance because he did not oppose the sentence recommended by the government or contained in the plea agreement at the time of sentencing. Petitioner's first and fourth grounds for relief are more ambiguously worded but seem to indicate that Petitioner may be alleging that his attorney refused to file a notice of direct appeal although he was asked to do so. The court will consider first Petitioner's second and third grounds for relief.
I. Petitioner's Second and Third Grounds for Relief
Petitioner's second ground for relief states "The Defendant argue from the sentence with his lawyer asking the lawyer to try to get less time." Doc. # 15 at 5. Petitioner's supporting facts for this allegation indicate that he was disappointed that his attorney did not argue for a lesser sentence at sentencing and believed that he might have received a lesser sentence if his attorney had asked for less time. Likewise, Petitioner's third ground for relief reflects Petitioner's evident opinion that his attorney's representation was less than professional because the attorney should at least have "put up [a] fight at the time of sentence." Doc. # 15 at 7.
The court construes Petitioner's second and third grounds for relief as alleging ineffective assistance of counsel based on the allegation that Petitioner's attorney did not argue for a shorter sentence at the time of sentencing. Having thus construed Petitioner's second and third grounds for relief, it is clear that the court lacks jurisdiction over these claims. Petitioner's plea agreement comprehensively waives the right to challenge the length of his sentence in any post-conviction proceeding including any habeas petition, and there is no allegation that Petitioner did not understand that he was waiving rights to direct appeal and to collaterally challenge his sentence. See United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005) (waiver of the right to appeal or to collaterally attack a conviction or sentence is enforceable if "(1) the language of the waiver encompasses [the] right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made"). However, the court believes that providing Petitioner some additional explanation of why he did not suffer ineffective assistance of counsel might aid in Petitioner's understanding of his rights and responsibilities regarding his plea agreement and might help forestall future pointless pleadings.
Pursuant to United States v. Booker, 543 U.S. 220 (2005), district courts must impose a sentence that is reasonable in light of the guideline range set forth in the United States Sentencing Guidelines and the factors set forth at 18 U.S.C. § 3553(a). United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir. 2006). The PIR prepared in advance of Petitioner's change of plea and sentencing hearing took the required factors into consideration and determined that a reasonable sentence, considering the nature and circumstances of Petitioner's offense and his criminal history and the other factors required by section 3553(a), was 57 months. Given that a term of imprisonment of 57 months represents the bottom end of the applicable guideline range, Petitioner is not entitled to any lesser sentence unless he can show that consideration of some factor would make a lesser sentence reasonable. As it happened in Petitioner's case, his attorney was able to bargain for a further 4-level reduction of Petitioner's offense level so that the sentence actually imposed was twenty months or nearly two years less than it otherwise would have been. Petitioner qualified for this reduction by, among other things, agreeing not to contest his sentence or to argue at sentencing for a term of imprisonment that was any less than the 37 month term agreed to by the government.
Petitioner's factual allegations and arguments offer absolutely no basis for any finding that Petitioner had any reasonable expectation for a lesser sentence than the one he received. Petitioner seems to be under the impression that a lesser sentence might have been granted if his attorney had argued for one. This is simply not the case. Because the court is bound to establish a reasonable sentence, the court must have a substantial reason for departure either upward or downward from what the guidelines and the factors set forth in 18 U.S.C. § 3553(a) would otherwise indicate. Petitioner has not made the court aware of anything that his attorney could have argued at sentencing that would have made any difference, nor can the court imagine any factor Petitioner's attorney could have argued that would have produced a better result than the 4-level downward departure Petitioner received by agreeing not to contest his sentence.
What Petitioner's attorney did do was to secure for Petitioner the 4-level downward departure that was available by bargaining for a rapid disposition of Petitioner's case. To obtain this downward departure, Petitioner promised not to contest the sentence recommended by the government at the time of sentencing. Nothing in Petitioner's attorney's efforts on Petitioner's behalf gives even the hint of substandard performance, let alone constitutionally deficient performance. To the extent Petitioner is disappointed by the fact he was told by his attorney that any argument at sentencing would result in a longer sentence, Petitioner should recognize that his ...