The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Movant, Eduardo Arellano-Felix, seeks relief under 28 U.S.C. § 2255 from a sentence of 134 months imprisonment plus five years of supervised release after he pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute methamphetamine. Movant raises two issues in his section 2255 motion; specifically: (1) counsel was ineffective in failing to file a requested notice of appeal ("Claim I"); and (2) counsel was ineffective in negotiating a plea because "the factual evidence and video tape could prove that Petitioner had nothing to do with a conspiracy or possession of meth" (Dkt. No. 110 at p. 4) ("Claim II"). Respondent has filed an opposition which asserts that Movant waived his right to file a § 2255 motion and that his Claims are procedurally defaulted because he did not file a direct appeal. Alternatively, Respondent argues that Movant's Claims can be denied on the merits. For the following reasons, Respondent should be ordered to file an answer as to Claim I. However, Claim II should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2009, Petitioner signed a plea agreement. He agreed to the following factual basis for his crime at the change of plea hearing:
Beginning no later than July 10th, 2007 and continuing thereafter to on or about August 27, 2007, in the Eastern District of California, defendant Eduardo Arellano-Felix agreed with co-defendants Oscar Lopez, Jose Garcia Guzman, and Becky Martinez to distribute methamphetamine.
The defendant, along with Oscar Lopez, agreed to distribute to Martinez and Guzman amounts of methamphetamine on a continuing basis for further distribution.
In July and August 2007 in Stockton, California, under the direction of law enforcement, confidential source, CS, made controlled purchases of methamphetamine from the co-defendants Jose Garcia Guzman and Becky Martinez.
The first was on July 10th for a small amount of methamphetamine. The second and third were on July 24, 2007, and were each for two-ounces of methamphetamine. The total was 82.9 grams of actual methamphetamine.
On August 13, 2007, under the direction of law enforcement, the CS purchased one quarter pound of methamphetamine from the co-defendant Jose Garcia Guzman and co-defendant Bekcy Martinez. During this meeting, the CS inquired as to the ability of the defendant to obtain and sell him or her five pounds of methamphetamine. Guzman responded that it was no problem. On August 27, 2007, the CS requested to purchase from co-defendant Guzman five pounds of methamphetamine. On this day, surveillance observed Guzman and Martinez arrive at the Bandoni Avenue residence to pick up the methamphetamine. Officers saw another car leave the garage with defendant Arellano-Felix driving and the co-defendant Lopez in the passenger seat. With surveillance in tow, the four defendants, two in one car and two in the other, then drove to the Sunny Road residence in Stockton, California to complete the transaction with the CS.
The defendant and Oscar Lopez were also there standing outside the house. The CS went into the residence, met with the twocodefendants, and observed five pounds of methamphetamine in a black bag on the kitchen table.
The CS stated he/she had to retrieve the money to pay for the methamphetamine and left the residence. The CS then gave the arrest signal, and officers arrested the defendant and co-defendants, and, pursuant to a federal search warrant, seized the five pounds of methamphetamine from the residence.
The five-pound substance tested positive for the presence of methamphetamine.
During the arrest, law enforcement recovered a gun from the defendant's waistband. (Dkt. No. ...