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Jose Maria Ojeda-Fragozo v. Order Denying Petition

January 14, 2011


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

On July 30, 2010, Petitioner Jose Maria Ojeda-Fragozo, a federal prisoner proceeding pro se, commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2255. Respondent United States of America opposes. The Court decides the matter on the papers submitted and without oral argument. See Civil L.R. 7.1 (d)(1). For the reasons stated below, the Court DENIES the petition.


On June 30, 2009, Petitioner was arrested for the offense of importing approximately 1.36 kilograms of methamphetamine into the United States. On August 19, 2009, pursuant to a plea agreement signed August 15, 2009, Petitioner pled guilty to a one-count information charging him with importation of 1.36 kilograms of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960.


In the plea agreement, the parties agreed that the Sentencing Guidelines should be computed to result in an adjusted offense level of 24. (Resp't's Opp'n Ex. A 8:16 [Doc. 29].) The parties stipulated that the Sentencing Guidelines were only advisory and just one of the factors that the Court would consider under 18 U.S.C. § 3553(a) in imposing a sentence. (Id. at8:4--6.) The parties also agreed that for Petitioner to qualify for the "safety valve" under § 5C1.2 of the Federal Sentencing Guidelines, Petitioner must truthfully disclose to the government all information and evidence he has regarding the offense and relevant conduct. If Petitioner did not qualify for the "safety-valve," he agreed that he may be subject to the statutory mandatory minimum sentence.

During Petitioner's change-of-plea hearing on August 19, 2009, Petitioner acknowledged that everything in the written plea agreement was explained to him in Spanish (Resp't's Opp'n Ex. B 4:13--15); he understood everything (id. at 4:16--17); he had enough time to talk to his attorney about the agreement and facts of the case (id. at 4:18--21); neither he nor anyone near and dear to him had been threatened by anyone (id. at 4:22--24); by pleading guilty, Petitioner was giving up his constitutional rights (id. at 4:25--5:2); and the maximum punishment for the offense included up to life in prison with a mandatory minimum of ten years in prison, and following release from custody, Petitioner would be on supervised release for five years (id. at 5:14--21). Additionally, Petitioner admitted that on June 30, 2009 he entered the United States from the Calexico East and California port of entry while driving a vehicle that he knew contained a controlled substance. (Id. at 6:10--25.) He agreed that federal agents found approximately 1.36 kilograms of methamphetamine in his vehicle. (Id. at 5:22--6:4.)

On July 30, 2010, Petitioner commenced the present habeas corpus proceedings pursuant to 28 U.S.C. § 2255. On September 22, 2010, Respondent filed an opposition. On October 4, 2010, Petitioner filed a response.


Petitioner argues that his sentence should be vacated and corrected because he was denied effective assistance of counsel at his sentencing hearing in violation of the Sixth Amendment.

A. Petitioner Waived His Right to Collateral Attack and Appeal When He Signed the Plea Agreement.

Petitioner waived his right to collaterally attack his sentence in the Plea Agreement. (Resp't's Opp'n Ex. A 11:2--22.) Courts have repeatedly upheld the validity of appeal waivers finding that "public policy strongly supports plea agreements." United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990); see also Brady v. United States, 397 U.S. 742, 752 n.10 (1970); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Courts will enforce a Petitioner's appeal waiver if (1) the waiver is knowingly and voluntarily made; and (2) the waiver, by its terms, waives the right to appeal. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000).

First, a valid waiver requires that the Petitioner agreed to its terms knowingly and voluntarily. See id. A reviewing court looks to the circumstances that surround the plea agreement's signing and entry to determine whether a defendant agreed to its terms knowingly and voluntarily. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 2000).

In the present case, Petitioner consented to enter into the Plea Agreement with his attorney's advice. (Resp't's Opp'n Ex. A 1:19--3:8, 12:20--24.) He represented that his plea was knowing and voluntary. (Id. at 6:4--14, 12:20--24.) Petitioner also represented that he was satisfied with his attorney's performance. (Id. at 13:2--4.) Thus, the Court concludes that Petitioner knowingly and voluntarily agreed to waive his right to appeal and collaterally attack his sentence.

Second, a valid waiver must also explicitly state that Petitioner is waiving his right to appeal. See Nunez, 223 F.3d at 958. A reviewing court applies contract principles, including the parole evidence rule. See United States v. Ajugwo, 82 F.3d 925, 928 (9th Cir. 1996). Under the parole evidence rule, a court enforces the contract's plain language and does not look to "extrinsic evidence . . . to interpret . . . the terms of an ...

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