The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Motion filed on 12/7/2007]
This matter comes before the Court on Petitioner Juan Carlos Trujillo-Chavez's("Petitioner"'s) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner moves this court to vacate his sentence and remand this matter for further proceeding, grant an evidentiary hearing, and assign new counsel. Having reviewed the materials submitted by the parties and considered the arguments advanced therein, the court DENIES Petitioner's § 2255 motion.
On May 21, 2007, pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(c), Petitioner plead guilty to a single count of illegal re-entry by an alien following deportation, a violation of 8 U.S.C. § 1326. (Pet.'s Motion 1.)
In the plea agreement, Petitioner stipulated to a statement of facts, which formed the "factual basis" of the plea agreement. (Gov.'s Opp'n to Pet.'s Motion, Ex. B ¶ 8.) Specifically, Petitioner agreed that he was a citizen of El Salvador and not a citizen or national of the United States; that in 1996 he was convicted of an aggravated felony, which was residential burglary; that he was lawfully deported in 1998, 1999, 2000, 2001, 2004, and 2006; and, that he knowingly and voluntarily re-entered and remained in the United States without authorization. (Id. ¶ 8.) In signing the plea agreement, Petitioner further averred that no one had "threatened or forced [him] in any way to enter into [the plea] agreement;" he understood that he may be subject to collateral consequences, "including . . . deportation, removal"; he would give up his right to appeal any sentence imposed; and, he would waive direct appeal or collateral attack of his conviction and sentence, "except a post-conviction collateral attack based on a claim of ineffective assistance . . . ." (Id. ¶¶ 7, 19.) Additionally, Petitioner agreed that, "[e]xcept as set forth herein [the plea agreement], there are no promises, understandings or agreements between USAO and defendant and defendant's counsel . . . ." (Id. ¶ 13.)
After questioning Petitioner on March 22, 2007, regarding the plea agreement, this court found a factual and legal basis for the plea and that Petitioner's waivers of his constitutional rights were made freely, intelligently, and voluntarily. (Gov.'s Opp'n to Pet.'s Motion, Ex. C.) Accordingly, on May 21, 2007, this court sentenced Petitioner pursuant to 8 U.S.C. § 1326 (b)(2) to fifty- one months imprisonment and a three year period of supervised release pursuant to the plea agreement. (Gov.'s Opp'n to Pet.'s Motion, Ex. A at 2.)
On December 11, 2007, Petitioner filed this motion for relief pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. (Pet.'s Motion 3.) On April 28, 2008, the government filed its Opposition to Defendant's Motion for Relief Pursuant to 28 U.S.C. § 2255.
Title 28 U.S.C. § 2255, the basic collateral remedy for persons confined pursuant to a federal criminal conviction, provides relief from sentences which are (1) imposed in violation of the Constitution or laws of the United States; (2) imposed by a court lacking jurisdiction; (3) imposed in excess of the maximum authorized by law; or (4) otherwise subject to collateral attack. The error alleged mut be a fundamental defect resulting in a "complete miscarriage of justice," an omission that is "inconsistent" with rudimentary demand of fair procedure, or an otherwise "exceptional circumstance." United States v. Timmreck, 441 U.S. 780, 783-84 (1979).
Section 2255 provides that the court shall grant an evidentiary hearing "[u]nless 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. A hearing is not required where the petitioner's factual allegations, when reviewed against the record, fail to state a claim upon which relief may be granted. Hill v. Lockhart, 474 U.S. 52, 60 (1985). "Entitlement to an evidentiary hearing based on alleged ineffective assistance . . . requires a showing that if [Petitioner's] allegations were proven at the evidentiary hearing, deficient performance and prejudice would be established." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002).
The Sixth Amendment requires that criminal defendants be provided with effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686-700 (1984). The Supreme Court has held that the two-part test set forth in Strickland, applies to challenges to guilty pleas based on ineffective assistance. See Hill, 474 U.S. at 58. To sufficiently allege a claim for ineffective assistance of counsel, the petitioner must allege that:
(1) his counsel's representation fell below an objective standard of reasonableness; and (2) counsel's substandard performance was prejudicial to the defense. Strickland, 466 U.S. at 687. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689. To meet the test for prejudice, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "Failure to ...