The opinion of the court was delivered by: Present: The Honorable Gary Allen Feess
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: (In Chambers)
ORDER RE: SECTION 2255 MOTION
Petitioner, who pled open to a charge of violating 8 U.S.C. § 1326(a), moves to set aside his conviction based on ineffective assistance of counsel. He contends that he was improperly advised by his counsel regarding his right to appeal that conviction, and that he failed to file an appeal despite Petitioner's direction to his counsel that an appeal challenging the Court's sentence should be filed.*fn1
The Court appointed counsel to represent Petitioner in these proceedings.*fn2 The Court has now conducted an evidentiary hearing and has read and considered the briefing submitted by the parties. For reasons discussed briefly below, the petition is DENIED.
Defendant, a citizen of Mexico, was present in the United States in 1983 at which time he was convicted of robbery using a sawed-off shotgun and sentenced to four years in state prison. Thereafter, he was deported from the United States on multiple occasions, but continued to return illegally. During that period, he continued to engage in criminal conduct that resulted in convictions for illegal re-entry, domestic violence, and driving under the influence with bodily injury. Immigration authorities discovered him within the Central District of California in 2010. The United States Attorney's Office charged him with a violation of 8 U.S.C. § 1326.
Defendant was offered a "fast-track" plea agreement, which he initially signed but ultimately rejected. According to all concerned, Petitioner refused the deal because the proposed sentence -- 37 months in custody -- was too much time for the offense. Instead, he pled open to the charge reportedly so that his attorney, Deputy Federal Public Defender Peter Goldman, could argue for a lower sentence even though Mr. Goldman advised that it was unlikely that the Court would impose a sentence lower than contemplated under the plea agreement. Moreover, Mr. Goldman advised Petitioner that, without the agreement, the low end of the sentencing guideline range was 57 months, and that, while he could preserve his right to appeal with an open plea, success on appeal was unlikely if the Court imposed a sentence within the guideline range. Mr. Goldman reiterated this prediction when meeting with petitioner to prepare for the sentencing hearing.
At the time of sentencing, Mr. Goldman in fact argued for 30 months in custody, but the Court imposed 57 months, which was the low end of the guideline range. At the end of the sentencing hearing the Court advised Petitioner of his right to appeal. After the hearing, Mr. Goldman and Petitioner spoke in the courtroom about a possible appeal before he was taken to the holding cell. Mr. Goldman reiterated that an appeal had no hope of success; they did not have any further conversation or meeting on the subject. Goldman received no further communication of any sort with his client, and indicated that he received no oral or written communication from his client directing that an appeal be filed.
Mr. Goldman's testimony was contradicted by Petitioner, who claimed that immediately after sentencing Mr. Goldman advised that he would file an appeal. (R.T. 2/7/2010 at 30.) A few days later, according to Petitioner, he called Mr. Goldman's "office in San Bernardino" and left a message asking whether Mr. Goldman had filed his appeal. (R.T. 2/7/2010 at 31-32.) Although he uses an interpreter and does not speak much English, the conversation took place in English because the person ...