The opinion of the court was delivered by: Honorable David O. Carter, Judge
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera N/A Courtroom Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Before the Court is pro se Petitioner Elias Garcia's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Motion") (Dkt. 1). After reviewing the moving and opposing papers, and for the reasons stated below, the Court hereby DENIES Petitioner's Motion.*fn1
On April 26, 2010, Petitioner pled guilty pursuant to a binding fast track plea agreement to one count of illegal alien found in the United States following deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Resp't. Motion at 3 (Dkt. 3). In the plea agreement, the parties stipulated to a total offense level of 17. Id. The crime warranted a base offense level of 8. Petitioner, however, received a sixteen-level increase because Petitioner was deported after a felony conviction for drug trafficking. Id. at 4. Nonetheless, Petitioner also received a seven-level subtraction for acceptance of responsibility and early disposition. Id. Based on a total offense level of 17 in conjunction with a criminal history category of V, Petitioner's sentence resulted in 46 months of imprisonment as stipulated in the plea agreement by both parties. Id. Judgment was entered on December 8, 2010. Id. Petitioner did not file a notice of appeal. Id. Thus, judgment became final 14 days later on December 22, 2010. Id.
On August 18, 2011, the Court received Petitioner's first Motion to Modify Sentence pursuant to 18 U.S.C. § 3582(c)(2) ("First Motion"). Id. at 4. In the motion, Petitioner argued that his sentence should be reduced because the stricter sentencing guidelines for possession of crack cocaine in relation to powder cocaine reflected unsound judgment by the U.S. Sentencing Commission. Motion at 21. On August 25, 2011, the Court denied Petitioner's motion according to Local Rule 11-4.1 and Federal Rule of Civil Procedure 5(d) for failure to provide a copy to the judge, failure to provide proof of service, and for lacking a signature. Resp't. Motion at 4.
On February 6, 2012, the Court received Petitioner's second Motion to Modify Sentence pursuant to 18 U.S.C. § 3582(c)(2) ("Second Motion") and subsequently forwarded the motion to defense counsel on February 27, 2012. Id. at 5. In the Second Motion, Petitioner raised a claim for ineffective assistance of counsel for the first time. Motion at 15. Petitioner alleged that the public defender informed Petitioner that, if he pled guilty, the maximum sentence imposed would be two years. Id. Petitioner also argued that his counsel failed to exhaust administrative remedies regarding his prior deportation proceeding. Id.
On March 16, 2012, the Court received Petitioner's third Motion to Modify Sentence pursuant to 18 U.S.C. § 3582(c)(2) ("Third Motion") and forwarded the motion to defense counsel on March 23, 2012. The Petitioner brought new claims for ineffective assistance of counsel, alleging that his counsel failed to file an appeal even though Petitioner requested his counsel to do so. Motion at 8. Petitioner also restated his previous claim for ineffective counsel by arguing that the public defender told him a guilty plea would result in a maximum two-year sentence. Id.
On March 30, Petitioner filed the present Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that . . . there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). If the motion combined with the files and records of the case conclusively ...