The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER DENYING DEFENDANT'S MOTION
Defendant, a prisoner in federal custody proceeding pro se, filed a motion pursuant to 28 U.S.C. Section 2255 to vacate, set aside, or correct sentence ("Motion") following his guilty plea and sentencing in Criminal Case No. 10cr1564. This Court issued an order requiring response to the Motion. The United States ("Government") filed a response, and Defendant filed a traverse. For the reasons which follow, the Motion is DENIED and this case is DISMISSED WITH PREJUDICE.
Defendant was represented by counsel throughout his criminal case. On May 19, 2010, he entered into a Plea Agreement and pleaded guilty to one count of intentionally importing approximately 32.42 kilograms (71.32 pounds) of cocaine in violation of 21 U.S.C. §§ 952 and 960. (Plea Agreement at 2.) Among other things, this charge carries a maximum penalty of life in prison with a mandatory minimum of ten years in prison. (Id. at 4.) In the Plea Agreement Defendant waived his right to appeal and collateral attack on the judgment and sentence. This Court sentenced him on August 6, 2010 to the mandatory minimum custodial term of ten years in prison.*fn1
The Motion was filed because Defendant was sentenced to a longer term than he believed he would get under the Plea Agreement. He claims his counsel was ineffective in violation of the Sixth Amendment rights because he did not challenge Defendant's allegedly warrantless search, competently expunge Defendant's state court misdemeanor conviction, or secure a safety valve exception to the mandatory minimum sentence pursuant to the United States Sentencing Guidelines Section 5C1.2. He claims he would not have entered into the Plea Agreement and waived his rights to appeal and collaterally attack the sentence if it were not for his counsel's representations that he would qualify for the safety valve exception and that the right to challenge the sentence would survive the guilty plea. In his traverse, Defendant also requests an evidentiary hearing.
The Plea Agreement informed Defendant that by pleading guilty he would waive certain constitutional and statutory rights, including his right to appeal or collaterally attack his conviction and sentence: "In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, . . .." (Plea Agreement at 10.) There was only one exception to Defendant's waiver, if "the Court imposes a custodial sentence above the greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing or statutory mandatory minimum term, if applicable." (Id.)
The Plea Agreement stated that Defendant was facing a maximum custodial sentence of life in prison and a mandatory minimum of ten years. (Plea Agreement at 4.) It also expressly set forth the agreed-upon sentencing recommendations, including a reference to the safety valve exception. The parties agreed to recommend the safety valve exception "if applicable." (Id. at 7-8.) Further elaboration of this point in the Plea Agreement shows it was uncertain whether Defendant qualified. (Id. at 8 ("Defendant understands that if he does not qualify for § 5C1.2, defendant may be subject to a statutory minimum sentence.") In this regard, the parties also stipulated they had "no agreement as to defendant's Criminal History Category." (Id. at 9 (emphasis in original).) Ultimately, the Government did not recommend the safety valve exception, but a statutory minimum custodial sentence (see Government's Sentencing Summary Chart filed Jul. 6, 2010), which the Court imposed.
Because Defendant was not sentenced to a longer term than the high end of the guideline range recommended by the Government or statutory minimum, the sentence imposed does not violate the Plea Agreement, and does not fall within the exception to the waiver. Defendant initialed every page and signed the Plea Agreement representing he "had a full opportunity to discuss all the facts and circumstances of this case with defense counsel, and has a clear understanding of the charges and the consequences of this plea." (Plea Agreement at 5.) He does not contend he was unaware of, or did not understand, the waiver or any other provision in the Plea Agreement.
When Defendant subsequently appeared in court to change his plea to guilty, Magistrate Judge Peter C. Lewis conducted a hearing under Rule 11 of the Federal Rules of Criminal Procedure in which he confirmed Defendant was of sound mind, explained to him the charges against him and the rights he was giving up by pleading guilty, and determined there was a factual basis for the plea. (See Tr. of the Change of Plea Hearing, May 19, 2010 ("Change of Plea").) The Judge also informed Defendant of the penalties for his offense, including the maximum life sentence and the mandatory minimum of ten years in prison. (Id. at 5.) He then discussed the upcoming sentencing with Defendant:
The Court: . . . Have you discussed the Sentencing Guidelines with your attorney? . . .
The Court: I want you to understand, however, that these Sentencing Guidelines are advisory, and they are not obligatory on the Court or the Judge. The Judge still has the discretion to sentence you up to the statutory maximum in your case. . . . Do you understand that? . ..
The Court: . . . Finally, you should understand also that once you are sentenced, you will not be able to withdraw this guilty plea that you're making mere today. Understood? . . . The Defendant: Yes, Sir. (Id. at 6-7.) Finally, the Judge inquired whether Defendant had any question about the Plea Agreement, but he had none. (Id. at 8.) The Judge then reviewed the waiver provision of the Plea Agreement with Defendant:
The Court: . . . The Plea Agreement does call for waiver of appeal and collateral attack. So long as you are sentenced no higher than the high end of the guideline range recommended by the government, pursuant to the Plea Agreement at the time of ...