The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
ORDER DENYING PETITIONER'S MOTION TO CORRECT CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255 VACATE, SET ASIDE, OR [Doc. No. 26 in 11-cr-323]
Presently before the Court is a motion by Petitioner Carlos Alfredo Castro ("Petitioner") pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and sentence. [Doc. No. 26.]*fn1 Petitioner, a federal inmate proceeding pro se, seeks relief on several grounds, including claims of ineffective assistance of counsel. For the reasons given below, the Court, after due consideration, DENIES Petitioner's motion to vacate, set aside, or correct his conviction and sentence.
On December 30, 2010, Border Patrol agents arrested Petitioner near Calexico, California after he was seen entering the United States by climbing over the international boundary fence between the United States and Mexico. [Doc. No. 1.] The Government filed a complaint on January 3, 2011 charging Petitioner with violation of 8 U.S.C. § 1326. [Id.] Petitioner waived indictment on January 27, 2011 and consented to being charged by information with violation of 8 U.S.C. §§ 1326(a) and (b); the information also alleged that Petitioner had been removed from the United States after July 10, 2008. [Doc. Nos. 8-9.]
On February 24, 2011, Petitioner, pursuant to a plea agreement, pled guilty before a magistrate judge to violation of 8 U.S.C. §§ 1326(a) and (b). [Doc. Nos. 15-16.] In his plea agreement, Petitioner admitted that he is "an alien and not a citizen of the United States . . . , [that he received] an aggravated felony conviction . . . in violation of California Penal Code § 273.5(A) . . . , [and that he] subsequently was lawfully excluded, deported and removed from the United States to El Salvador on November 10, 2010 . . . ."*fn2 [Doc. No. 16 at 2.] Petitioner also expressly waived in the plea agreement any right to appeal or collaterally attack his guilty plea, conviction, or sentence. [Id. at 3.] The Court subsequently accepted Petitioner's guilty plea and, on May 23, 2011, sentenced Petitioner to a term of imprisonment of 57 months, followed by a three-year term of supervised release.*fn3 [Doc. Nos. 17; 23-24].
Petitioner brought the present timely motion on April 26, 2012. [Doc. No. 26.] On May 7, 2012, the Court ordered the Government to show cause why Petitioner's motion should not be granted. [Doc. No. 273] The Government filed its response in opposition on June 1, 2012. [Doc. No. 31.] Petitioner filed his reply on July 3, 2012. [Doc. No. 32.]
Petitioner seeks relief on the grounds that (1) he received ineffective assistance of counsel ("IAC"); (2) his prior removals were invalid; and (3) the Court improperly calculated his criminal history score and sentence in a variety of ways.*fn4 [Doc. No. 26.] The Government contends Petitioner's claims are barred because Petitioner "knowingly and voluntarily waived his right to appeal or collaterally attack his conviction and sentence" and that Petitioner's factual allegations are refuted by the record. [Doc. No. 31 at 10.] Although several of Petitioner's IAC allegations are irrelevant to whether he waived his right to collaterally attack his conviction and sentence, a number of them challenge the knowing and voluntary nature of his plea agreement and its waiver of his collateral attack right. Therefore, whether Petitioner knowingly and voluntarily waived his right of collateral attack is determined by first examining the waiver provision in Petitioner's plea agreement and then considering Petitioner's IAC claims attacking his plea agreement's validity.
I. Legal Standard for a Motion to Vacate, Set Aside, or Correct Conviction and Sentence Pursuant to 28 U.S.C. § 2255
Petitioner brings the present motion to collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255. Section 2255 provides that a federal prisoner seeking relief from a custodial sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence" on "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 . . . ." 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962) (internal quotation marks omitted). "Errors of law which might require reversal of a conviction or sentence on appeal do not necessarily provide a basis for relief under § 2255." United States v. Wilcox, 640 F.2d 970, 973 (9th Cir. 1981).
"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the Court must hold an evidentiary hearing on the merits of a § 2255 motion. 28 U.S.C. § 2255(b). The Ninth Circuit has stated the "standard is essentially whether the 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) (per curiam). Therefore, an evidentiary hearing is unnecessary if the allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal quotation marks omitted). Similarly, if a "prisoner's motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required." United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
A defendant's past representations in open court "constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations made in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also Womack v. McDaniel, 497 F.3d 998, 1004 (9th Cir. 2007) (finding it "reasonable . . . to reject [petitioner's habeas] claim that his plea was not knowingly, voluntarily or intelligently entered . . . . [where petitioner's] allegation is belied by his statements in open court and the contents of his signed plea agreement.").
Courts generally enforce plea agreements containing knowing and voluntary waivers of statutory rights of appeal or collateral attack because such "waivers usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements." United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000). A "defendant may waive the statutory right to file a § 2255 petition challenging the length of his sentence" but the defendant must (1) expressly waive the right of collateral attack and (2) do so knowingly and voluntarily. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); United States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009). Further, even with an otherwise seemingly valid waiver, a defendant cannot waive the statutory right to file a § 2255 petition challenging the knowing and voluntary nature of the plea agreement and waiver because enforcing the waiver would presuppose the very thing at issue: whether the waiver was valid in the first place. See Washington v. Lampert, 422 F.3d 864, 869-73 (9th Cir. 2005) (holding that a "plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim that challenges the voluntariness of the waiver."); United States v. Racich, 35 F. Supp. 2d 1206, 1210 (S.D. Cal. 1999) ("a waiver does not ...