The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER SUMMARILY DISMISSING DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255 [Doc. No. 26]
Defendant Cesar Vargas Reyes, proceeding pro se, moves to vacate and correct his sentence pursuant to Title 28 of the United States Code, section 2255. Defendant argues that his counsel was ineffective for failing to object to a sixteen level increase to his base offense level due to a prior drug trafficking conviction. Defendant also argues that he is entitled to relief for post conviction rehabilitation. For the following reasons, the Court summarily DISMISSES the motion.
On June 2, 2011, Defendant pleaded guilty to a single felony count of being a deported alien found in the United States, in violation of Title 8 of the United States Code, sections 1326(a) and (b). See Doc. No. 15. The plea agreement provided that the parties would jointly recommend a base offense level of 8, a sixteen level increase for a prior aggravated felony conviction, a three level decrease for acceptance of responsibility, and a two level decrease for fast track disposition, amounting to a total offense level of 19.*fn1 The government agreed to recommend a sentence at the low end of the applicable guideline range. The parties made no agreement as to Defendant's criminal history category. The plea agreement provided:
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 guilty plea, conviction and sentence, including any restitution order, unless 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.
Subsequent to the June 2, 2011 plea colloquy, Magistrate Judge Bernard G. Skomal issued findings that Defendant understood he was giving up his rights to appeal and to collateral attack, and that he otherwise understood the plea agreement in its entirety. See Doc. No. 16. Judge Skomal further found that Defendant was competent to enter the plea and that he gave a "knowing and intelligent waiver of each [of his] rights . . . ." Id. On October 3, 2011, this Court accepted Defendant's guilty plea and sentenced Defendant to 41 months in prison, followed by a three year term of supervised release. See Doc. No. 25. Defendant waived his appeal rights. See Doc. No. 24.
Defendant now moves to vacate and correct his sentence under 28 U.S.C. § 2255. Defendant raises two grounds for relief: (1) he received ineffective assistance of counsel because counsel failed to object to the sixteen level increase to his base offense level; and (2) he is entitled to a relief due to post conviction rehabilitation.
Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). If a defendant's motion, file, and records
"conclusively show that the movant is entitled to no relief," the
Court summarily may dismiss the motion without sending it to the
United States Attorney for response. See 28 U.S.C. § 2255(b). The
rules regarding Section 2255 proceedings similarly state that the
Court summarily may order dismissal of a 2255 motion without service
upon the United States Attorney only "[i]f it plainly appears from the
face of the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief . . .".
Rule 4(a), RULES-SECTION 2255 PROCEEDINGS (West 2009).*fn2
Thus, when a defendant fails to
state a claim upon which relief can be granted, or when the motion is
incredible or patently frivolous, the district court may summarily
dismiss the motion. Cf. United States v. Burrows, 872
F.2d 915, 917 (9th Cir. 1989); Marrow v. United States, 772 F.2d 525,
526 (9th Cir. 1985).
A. Defendant Waived His Right to ...