ORDER DENYING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE ) (Doc. 149)
Petitioner Alfredo Nuno ("Petitioner") has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For reasons discussed below, the motion will be denied.
FACTUAL AND PROCEDURAL HISTORY
Petitioner was arrested with three other men in February 2008 after law enforcement executed a search warrant on a residence in Stevinson, Calif., and found a "large scale clandestine methamphetamine laboratory." See Court's Docket, Doc. 114 at 5-6. Petitioner was indicted March 6, 2008, on violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 and 18 U.S.C. § 2. Id. Doc. 34-1 at 3. Petitioner pled guilty at a change of plea hearing on November 2, 2009, based on a plea agreement filed October 11, 2009. The plea agreement, made pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, stipulated that Petitioner would not seek a sentence of less than 120 months. Id. Doc. 114 at 2. Petitioner also waived his right to appeal the conviction or sentence or to collaterally attack his conviction or sentence in a motion under 28 U.S.C. § 2255. Id. Doc. 114 at 4. In exchange, the government promised to recommend a three-level reduction in Petitioner's offense level for acceptance of responsibility and to recommend a sentence at the bottom of the applicable advisory sentencing guideline range. Id. Doc. 4 at 4-5.
The court sentenced Petitioner to 262 months imprisonment on February 22, 2010. Petitioner then moved to correct or reduce the sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, arguing that the sentence was contrary to the plea agreement and that the chief prosecutor's absence at the sentencing hearing deprived the court of information needed to make a correct sentence. Id. Doc. 133. The court denied the motion and upheld the sentence on March 29, 2010. Judgment was entered on March 31, 2010.
Petitioner filed a motion requesting court transcripts on September 27, 2010; the motion was denied because Petitioner had not filed a § 2255 motion or fulfilled any other prerequisite for receiving publicly-funded court transcripts. On November 1, 2010, Petitioner filed the instant § 2255 motion to vacate, set aside, or correct his sentence.
The motion challenges Petitioner's conviction and sentence on various legal grounds. These include allegations that the sentence violated Petitioner's Fifth and Sixth Amendment rights, that 21 U.S.C. § 841 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that the United States Sentencing Guidelines were applied unreasonably, and that Petitioner's sentence violated the Eighth Amendment prohibition on grossly disproportionate punishment.
Title 28 U.S.C. § 2255 provides, in pertinent 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 sentence was in excess of the maximum authorized by law ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255.
Courts must "construe pro se habeas filing liberally." Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). In determining whether to grant a hearing on a § 2255 motion, "[t]he standard essentially is whether a movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). Rule 2 of the Rules Governing Habeas Corpus Cases provides that a § 2255 motion "must state the facts supporting each ground." Rule 4 allows the court to summarily dismiss a petition without seeking a reply from the government where "it plainly appears ... that the moving party is not entitled to relief." Allegations may be so conclusory or vague as to warrant summary dismissal for that reason alone. Blackledge v. Allison, 431 U.S. 63, 75, 75 n. 7 (1977); see also Sanders v. United States, 373 U.S. 1, 19 (1963) (noting that district court had the power to dismiss § 2255 motion "because it stated only bald legal conclusions").
A term in the plea agreement signed by Petitioner states that "[t]he defendant ... waives his right to challenge his conviction, sentence or the manner in which it was determined in any post-conviction attack, including but not limited to a motion brought under [18 U.S.C. §] 3582, and [28 U.S.C. §§] 2241 or 2255." Such a waiver is generally enforceable if (1) the waiver encompasses the present motion, and (2) the waiver is knowingly and voluntarily made. United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011) (quoting United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009)).
The plea agreement, made in compliance with Rule 11 of the Federal Rules of Criminal Procedure and signed by Petitioner, states in the pertinent waiver clause that Petitioner "knowingly" waived his rights to post-conviction relief, and a clause pertaining to the entire agreement states that "[t]he defendant and his attorney acknowledge that no threats, promises or representations have been made, nor agreement reached, other than those set forth in this Agreement, to induce defendant to plead guilty." Court's Docket, Doc. 114 at 4, 9.
Petitioner argues that his waiver of appeal is analogous to the doctrine of procedural default, which forecloses § 2255 claims that could have been raised in earlier proceedings, and that Petitioner should be allowed to overcome the waiver by showing both "cause excusing his procedural default, and actual prejudice resulting from the claim of error" - the standard ...