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United States of v. Sergio Curiel

August 4, 2011

UNITED STATES OF AMERICA, RESPONDENT,
v.
SERGIO CURIEL, SR.,
MOVANT.



ORDER AND FINDINGS & RECOMMENDATIONS

Movant is a federal prisoner proceeding through counsel with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On April 17, 2007, movant pled guilty to one count of conspiracy to distribute and to possess with intent to distribute methamphetamine and cocaine. See Doc. No. 235. Movant was sentenced to a 240-month term of imprisonment and a 120-month term of supervised release. Id. Movant did not appeal in light of the plea agreement. See Pet. at 4. In the instant motion, movant raises multiple claims for relief from the conviction and sentence. Respondent contends that movant's claims are barred and do not have merit.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In the Superseding Indictment filed July 28, 2005, movant was charged with conspiracy to distribute and to possess with intent to distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1); attempt to possess with intent to distribute methamphetamine, id.; possession with intent to distribute cocaine, id.; and distribution of methamphetamine, id. Doc. No. 71. Movant pleaded not guilty. Doc. No. 73.

At a change of plea hearing held on September 15, 2006, during which movant was represented by Gilbert Roque, the following exchange took place:

[PROSECUTOR]: ... Pursuant to the plea agreement, [movant] will plead guilty to Count 1 in the indictment charging conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine, in violation of 21 United States Code Section 846 and 841(a)(1), involving at least 5-grams of methamphetamine actual and 5 kilograms of a mixture or substance containing cocaine.

Second, [movant] agrees to stipulate to the factual basis in Exhibit A to the plea agreement, and that the amount of drugs involved in the conspiracy exceeded one and a half kilograms of methamphetamine actual. [¶]

The [movant] also agrees to cooperate with the Government in its ongoing investigation, and, finally, agrees to waive appeal and collateral attack.

The Government agrees to dismiss the remaining counts against this [movant] at sentencing. If he fully cooperates, the Government will recommend a sentence of 15 years. And the Government will not oppose a three level reduction for acceptance of responsibility, if the probation office determines that that's appropriate in this case.

THE COURT: Waiver of appeal and collateral attack?

PROSECUTOR]: Yes, your Honor.

THE COURT: That's your understanding, Mr. Roque?

[DEFENSE COUNSEL]: Yes, Judge.

THE COURT: [Movant], do you understand what the Assistant United States Attorney has just told the court?

[MOVANT]: Yes.

THE COURT: And is it your desire to enter a plea in accordance with this arrangement?

[MOVANT]: Yes.

Doc. No. 266 at 2-4. Before accepting the guilty plea, the trial court discussed certain rights and presumptions that movant was abandoning by pleading guilty, including his right to a jury trial, presumption of innocence, right of confrontation and right to appeal. Id. at 4-7. Movant was then informed that his potential sentence ranged from a ten year minimum sentence to life imprisonment. Id. at 7-8. Subsequently, the trial court asked movant these questions:

THE COURT: Now, [movant], I'm going to have you sworn and ask you some questions. If you are not to tell the truth after being sworn, you'll be subjecting yourself to a possible additional prosecution, for perjury or false statement, do you understand?

[MOVANT]: Yes. [Movant was sworn in.] [¶]

THE COURT: Did you read -- was the plea agreement read to you in Spanish before you signed it?

[MOVANT]: Yes.

THE COURT: Were any promises made to you to get you to plead guilty, that was not included in the written plea agreement?

[MOVANT]: No.

Id. at 9-10. Following further discussion with counsel, the trial court accepted movant's plea. Id. at 11-12.

On December 13, 2006, following the change of plea hearing, Arturo Hernandez was substituted for Mr. Roque.

On April 17, 2007, a sentencing hearing was held, during which movant was sentenced to 240 months imprisonment followed by 120 months of supervised release. Doc. No. 257.

On April 21, 2008, movant filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. On August 25, 2008, movant filed the operative amended motion pursuant to Section 2255 seeking relief on three general grounds: (1) his guilty plea was obtained involuntarily; (2) his counsel was ineffective during all stages of the criminal proceedings; (3) the sentencing judge erred during the sentencing hearing.

On January 20, 2009, respondent filed a motion to dismiss on the ground that movant's motion is barred by the express terms of his plea agreement wherein movant agreed to waive collateral attack. On September 28, 2009, the undersigned denied the motion without prejudice in light of Soto v. United States, 2009 WL 1862454 (E.D. Cal.) (1:06-cr-0315 AWI), which suggested that "[t]he distinction between conduct occurring before or after the plea has some significance" in the context of ineffective assistance of counsel claims under Ninth Circuit authority. The Soto court certified for appeal two questions:

1. Does a defendant who executes a plea agreement containing a generalized waiver of rights to appeal or collaterally attack his sentence or conviction thereby waive his right to claim ineffective assistance of counsel where the allegedly ineffective assistance occurred after the plea agreement was executed?

2. Does a defendant who executes a plea agreement containing a generalized waiver of rights to appeal or collaterally attack his sentence or conviction thereby waive the right to claim, either by way of direct appeal or collateral attack, sentencing error under Apprendi, Ameline, or Booker?

Id. at *11. Although Soto remains pending on appeal, respondent was advised that, should he renew the motion to dismiss, he shall address the application of the reasoning set forth in Soto.

On May 27, 2011, respondent filed an opposition to the instant petition and renewed the argument raised in his motion to dismiss. On June 20, 2011, movant filed an answer, which the court construes as a traverse. In the traverse, movant requests an evidentiary ...


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