The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to vacate, correct or set aside sentence pursuant to 28 U.S.C. § 2255 filed by Defendant Jose Sosa-Sandoval. (ECF No. 43).
On October 21, 2009, Defendant Jose Sosa-Sandoval and Leopoldo Sosa-Sandoval, Defendant's brother, were arrested after Drug Enforcement Agency and Immigration and Customs Enforcement agents executed a search warrant at Defendant's residence, located at 625 Corvina Street in Imperial Beach, California. Agents discovered two handguns, multiple rounds of ammunition, 30.60 grams of marijuana, and a rental agreement and utility bill for another residence located at 706 Church Street in Chula Vista, California ("Church Street residence"). Later that day, agents executed a search warrant at the Church Street residence, where they found approximately 138 pounds of methamphetamine.
On April 15, 2010, a superseding information was filed as part of a plea agreement, charging Defendant with conspiracy to distribute over 15 kilograms of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). (ECF No. 25 at 14). As part of the signed plea agreement, Defendant admitted that on several occasions "between 2007 and October 21, 2009, he agreed with others, including Leopoldo Sosa-Sandoval and 'Huaracha,' to distribute cocaine and methamphetamine by meeting with couriers who smuggled narcotics through the California Ports of Entry ..." Id. at 3. After crossing the border, the couriers would meet with Defendant and Leopoldo Sosa-Sandoval, Defendant's brother. Id. at 3-5. Defendant and his brother Leopoldo would take the vehicles to the Church Street residence "where the methamphetamine or cocaine was stored until distribution to the Central District of California (i.e. Los Angeles and Riverside areas)." Id. Between October 2008 and July 2009, authorities intercepted six of the couriers vehicles, containing a total of 326.85 pounds of methamphetamine and cocaine. Id. Defendant also assisted in "storing approximately 80 pounds of methamphetamine" at the Church Street residence. Id. at 6.
On April 15, 2010, Defendant entered a plea of guilty to the superseding information before the Magistrate Judge. (ECF No. 53-8 at 4). The Magistrate Judge found that Defendant's waiver of indictment was knowing and voluntary. Id. at 3. Defendant stated in open court that he had discussed his plea agreement thoroughly with his attorney. Id. at 9. Defendant acknowledged that he was waiving his constitutional right to plead not guilty and to have a jury trial. Id. at 5-6. Defendant stated that he understood that the sentencing judge would consider, but not be bound by, sentencing guidelines in determining his sentence. Id. at 7-8. Defendant stated that he understood that the mandatory minimum sentence that could be imposed in this case was 10 years imprisonment and that the maximum sentence was a life term of imprisonment. Id. at 7. Defendant acknowledged that he was waiving his right to appeal or collaterally attack the sentence imposed. Id. at 9-10. Defendant's counsel, Donald Nunn, stated that he had thoroughly discussed the plea agreement with his client. Id. at 10. Defendant acknowledged in open court that the facts stated as a basis of the plea agreement were true. Id. at 11-19. The Magistrate Judge accepted the Defendant's plea of guilty and found it to be knowing and voluntary. Id. at 18. The Magistrate Judge entered his findings and recommendation, and no objection was made. (ECF No. 26).
On May 4, 2010, this Court accepted Defendant's plea of guilty to Count 1 of the superseding information. (ECF No. 28).
On November 1, 2010, this Court held a sentencing hearing. Defendant submitted a letter to the Court in which he requested a change of counsel due to a "conflict of interest." (ECF No. 43-1 at 1). Defendant's letter stated: "I have requested the discovery of my case and have received nothing. ... I have asked my attorney to investigate my home for exonerating evidence. My attorney refused all requests...." Id. The Court inquired further and Defendant said, "well, the truth is that I just think it's a lot. That's 150-something or 100 months that they're giving me when I accepted my guilt without being forced and I pled guilty and am remorseful about it." (ECF No. 58 at 5). The Court continued the matter for one week for Defendant and his counsel Nunn to discuss the matter. Id. at 6.
On November 8, 2010, a status hearing was held. Nunn told the Court that he "met at length with [Defendant] last week and we discussed everything from the beginning of the case to this point." (ECF No. 49 at 2). Defendant told the Court that he wanted a new attorney because "[I] never received a copy of my case" and "never saw the indictment." Id. at 4. The court granted Defendant's request and appointed Keith Rutman to represent Defendant. Id.
On November 15, 2010, a status hearing was held. The Court scheduled a January 10 sentencing hearing, so as to give Rutman time to familiarize himself with the case and to meet with Defendant.
On January 10, 2011, Defendant was sentenced to a term of imprisonment of 142 months, followed by 5 years of supervised release. (ECF No. 53-9 at 4).
On February 7, 2011, Defendant filed the § 2255 motion now pending before the Court.
CONTENTIONS OF THE PARTIES
Defendant moves the Court to vacate, set aside, or correct his sentence on the following grounds: 1) Nunn rendered ineffective assistance by failing "to adequately and professionally investigate [Defendant's] case," 2) Rutman rendered ineffective assistance by failing "to adequately and professionally discuss the case with [Defendant]" before sentencing, and 3) Defendant's plea of guilty was not knowing and voluntary. (ECF No. 43 at 4). Plaintiff United States asserts that "Sosa can not [sic] demonstrate ... that Nunn's acts or Rutman's acts were outside the wide range of professional competent assistance...." (ECF No. 53 at 12). Plaintiff United States contends that Defendant's plea ...