UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 6, 2010
MIGUEL MORALES-CHAVEZ, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER DENYING MOTION TO VACATE UNDER 28 U.S.C. § 2255
Pending before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On February 4, 2009 Petitioner pleaded guilty to importation of methamphetamine in violation of 21 U.S.C. §§ 952, 960 subject to a plea agreement. (Opp. at Ex. 5.) On August 21, 2009, this Court sentenced Petitioner to 51 months custody followed by three years of supervised release, to be waived upon Petitioner's removal to Mexico. (Id. at Ex. 10 at 6-7.) On July 9, 2010, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255.
Petitioner argues he received ineffective assistance of counsel due to his attorney's failure to argue for a lower sentence on the basis that his status as a deportable alien made him ineligible for minimum security confinement and a pre-release drug program. Petitioner argues this alleged ineffective assistance of counsel deprived him of his Equal Protection rights under the Constitution. However, as an initial matter, when Petitioner pleaded guilty in exchange for a lower sentence, which was actually imposed, he waived his right to collaterally attack his sentence. (Id. at Ex. 4 at 11.) Such a waiver bars relief under § 2255 other than for ineffective assistance of counsel claims that challenge the voluntariness of the waiver. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005). Here, Petitioner does not challenge the voluntariness of his waiver, but rather challenges his counsel's failure to request a downward departure based upon his deportable alien status and thus likely waived his right to bring such a collateral challenge.
Regardless, Petitioner has failed to establish ineffective assistance of counsel, which requires a showing that (1) counsel's performance was deficient and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Here, even if counsel failed to specifically request a downward departure due to Petitioner's status as a deportable alien, such a failure did not constitute deficient performance. To show deficient performance, Petitioner was required to demonstrate that his counsel's actions were not "within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56-7 (1985)(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Petitioner has failed to do so here. Accordingly, Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied.*fn1
IT IS SO ORDERED.