The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255
Defendant Conrado Torres-Gaytan, a federal prisoner proceeding pro se, challenges his conviction and sentence pursuant to Title 28 of the United States Code, section 2255, arguing that he was denied his Sixth Amendment right to effective assistance of counsel because his attorney failed to adequately advise him regarding the immigration consequences of his guilty plea. See Doc. No. 52. The government filed a response to the motion. See Doc. No. 54. Defendant did not file a reply. For the reasons set forth below, the Court DENIES Defendant's motion.
Defendant is a citizen of Mexico. On February 25, 2009, Defendant applied for entry into the United States from Mexicali, Baja California, Mexico, at the Calexico, California, west Port of Entry by presenting a valid Lawful Permanent Resident Alien card. See Complaint, Doc. No. 1. After a Narcotic Detector Dog alerted to his vehicle, agents examined the vehicle and discovered twenty packages weighing approximately 24.22 kilograms (53.28 pounds), which field tested positive for the indication of cocaine. Id.
On July 15, 2009, pursuant to a written plea agreement, Defendant
pleaded guilty to Count One of a two-count Indictment charging him
with importing cocaine in violation of Title 21 of the United States
Code, sections 952 and 960. See Doc. Nos. 3, 20. During the plea
colloquy, Defendant admitted the essential elements of the charge and
waived his rights to direct appeal and collateral attack.*fn1
See Change of Plea Hearing Transcript, Doc. No. 48, 8. After
receiving extensive briefing from the parties regarding Defendant's
eligibility for safety valve relief, this Court found him ineligible
and sentenced Defendant on December 14, 2009, to the mandatory minimum
term of 120 months imprisonment, 5 years of supervised release, and a
$100 special assessment. See Judgment,Doc. No. 39. On December 22,
2009, Defendant filed a Notice of Appeal. See Doc. No. 40.
Approximately one year later, the Ninth Circuit dismissed the appeal
based on Defendant's valid waiver of his right to direct appeal. See
Mandate and Memorandum Opinion, Doc. No. 51.
Defendant has filed a timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Pursuant to Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), Defendant contends that he received ineffective assistance of counsel when his attorney failed to advise him that he would be deported as a result of his guilty plea. Defendant suggests that his guilty plea was not knowing or voluntary because he did not know the immigration consequences of his conviction. According to Defendant, if he knew he would be deported he would not have pleaded guilty and would have chosen to go to trial.
A motion to vacate, set aside, or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2555 entitles a prisoner to relief if "the court finds . . . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and the records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief.*fn2 See United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996); United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989).
In Padilla, the Supreme Court determined that "counsel must inform her client whether his plea carries a risk of deportation" and that failure to do so could constitute deficient performance under Strickland v. Washington, 466 U.S. 668 (1984).*fn3 Padilla, 130 S.Ct. at 1486. To demonstrate ineffective assistance of counsel, a defendant must establish deficient performance and prejudice. Strickland, 466 U.S. at 687.
Defendant cannot establish that his counsel's performance was deficient. The record demonstrates that Defendant, his counsel, government counsel, and the Court, were all aware of the immigration consequences of his guilty plea and conviction. During Defendant's final sentencing hearing, his attorney requested the Court "to consider recommending to the Bureau of Prisons that he be designated to FCI Terminal Island" "a medium facility, a minimum, a facility where illegal immigrants, people who are going to lose their green cards can be housed." See Sentencing Hearing Transcript, Doc. No. 47, 63. Counsel for the government noted that Defendant "is someone who understands the consequences and will lose his immigration status." Id. at 64. At the close of the hearing, the Court recommended that Defendant be housed at FCI Terminal Island. Id. at 65.
Furthermore, Defendant concedes in his moving papers that his attorney advised him "that deportation was very likely." See Def. Motion, 10. Defendant asserts that this advice was insufficient under Padilla, which requires counsel to advise their client whether deportation is "virtually certain." Id. Defendant borrows this language from the Ninth Circuit's holding in United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011), that "[a] criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty." Here, as in Padilla, Defendant was convicted of a felony drug offense and the adverse immigration consequences of such a conviction were "succinct, clear, and explicit." Padilla, 130 S. Ct. at 1483. However, unlike the attorney in Padilla who told Padilla that he "did not have ...