The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING MOTION TO VACATE SENTENCE
Presently before the Court is a motion brought by Petitioner Carlos Soto-Lopez pursuant to 28 U.S.C. § 2255 to vacate his sentence. For the reasons discussed herein, the Court DENIES Petitioner's motion.
On or around October 17, 2007, the Government filed a complaint in this district alleging Petitioner Carlos Soto-Lopez illegally re-entered the United States in violation of 8 U.S.C. § 1326. The case was assigned case number 07-CR-3119-IEG. (See Def.'s Response, Attach. 1.) Federal Defenders, Petitioner's court-appointed counsel, assigned the case to Amber Baylor. (Pet.'s Mot. at 3.)
On October 29, 2007, the Government offered Petitioner a fast-track plea deal. (See Pet.'s Mot., App. A.) Among other things, acceptance of the deal would require Petitioner to waive indictment and agree to plead guilty quickly. (Id.) In exchange, the Government would give Petitioner a "charge bargain," meaning he would plead guilty to an information charging him with three counts of illegal entry, in violation of 8 U.S.C. § 1325(a), and the Government would recommend to the Court that Petitioner receive a sentence of no greater than 48 months. (Id.)
On November 15, 2007, Petitioner waived indictment. (Id. at 3-4.) The same day, pursuant to the anticipated plea agreement, an information was filed charging Petitioner with three counts of illegal entry in violation of 8 U.S.C. § 1325. (Id.) Petitioner entered a not guilty plea, and the change of plea hearing was continued. (Id.)
In late November, 2007, Petitioner heard from another inmate that an attorney named Christian De Olivas could possibly get him a better deal. (Id. at 4.) Petitioner met with Mr. De Olivas and became dissatisfied with the 48-month offer Ms. Baylor had procured for him, believing he could get a lower sentence. (Id.) Based on Mr. De Olivas' representation that he would be able to obtain a 24 or 30-month deal for him, Petitioner retained Mr. De Olivas on December 4, 2007 and agreed to pay him $4,000. (Id.) Soon thereafter, Mr. De Olivas substituted in as Petitioner's attorney, thereby relieving Federal Defenders. (Id.) Based on the advice of Mr. De Olivas, Petitioner rejected the fast-track plea deal. (Id.)
On December 27, 2007, Petitioner was indicted in case number 07-CR-3475-IEG on a single count of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. (See Def.'s Response, Attach. 2.) On January 11, 2008, the information in case 07-CR-3119-IEG was dismissed and petitioner pleaded not guilty in the present case. (Def.'s Response at 2.) On June, 16, 2008, Petitioner pleaded guilty to the indictment without a plea agreement. (See Def.'s Response, Attach. 2.) Sentencing was set for September 15, 2008. (Def.'s Response at 2.)
However, on August 27, 2008, the Standing Committee on Discipline for the Southern District of California ("Standing Committee") filed a petition requiring Petitioner's attorney, Mr. De Olivas, to show cause why he should not be suspended or disbarred from practicing in the district due to unprofessional conduct. (Pet.'s Mot. at 5.) On September 24, 2008, Mr. De Olivas was disciplined and suspended from practice within the district for a year. (Def.'s Response at 2.) The order required Mr. De Olivas to inform his clients of his suspension and offer them the opportunity to retain other counsel. (Id.) If the client wished for Mr. De Olivas to continue the representation, then he would be permitted to do so at the discretion of the assigned district court, and only if Mr. De Olivas associated with experienced counsel. (See Pet.'s Mot., App. B.) Mr. De Olivas never notified Petitioner of the disciplinary action. (Pet.'s Mot. at 5.) Rather, on October 5, 2008, Mr. De Olivas filed an ex-parte motion to substitute out as Petitioner's attorney. (Id.) On October 9, 2008, this Court granted Petitioner's motion to substitute counsel and reappointed Federal Defenders. (Def.'s Response at 3.)
On January 7, 2009, Petitioner filed a sentencing memorandum requesting that the Court impose a sentence of time served. (Def.'s Response at 3.) He also recommended that, if the Court did not impose a time served sentence, the Court impose a sentence of no more than 48 months. (Id.) The basis of this request was because Petitioner had been offered a 48-month plea agreement, but rejected it upon the advice of his retained attorney. (Id.)
On January 12, 2009, at the sentencing hearing, Petitioner argued that the Court should impose a lower sentence because of the circumstances that resulted in his turning down a 48-month sentence. (Id.) The Court informed Petitioner that it was willing to allow him to withdraw his guilty plea and Petitioner declined the Court's offer. (See Def.'s Response, Attach. 3.) The Government recommended that the Court sentence Petitioner to the low end of the guideline range of 77 months. (Def.'s Response at 3.) The Government stated that 77 months was an appropriate and reasonable sentence in light of Petitioner's prior record, which included four prior felony drug convictions, seven prior deportations, several grants of probation and a significant prison sentence from his drug convictions. (See Def.'s Response, Attach. 3.) The Court agreed with the Government's assessment. (Def.'s Response at 4.) Accordingly, the Court sentenced Petitioner to 77 months in custody, 3 years of supervised release, and waived the penalty assessment. (See Def.'s Response, Attach. 3.)
Petitioner appealed his sentence, arguing in part that the Court should have imposed a lower sentence because Mr. De Olivas had advised Petitioner to reject the fast-track plea offer. (See Def.'s Mot. at 5.) On January 7, 2010, the Ninth Circuit affirmed his sentence. (Id.)
On September 3, 2010, Petitioner filed the present motion to vacate his sentence based upon a claim of ineffective assistance of counsel. (Doc. No. 38.) The Government filed a response ...