The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER SUMMARILY DISMISSING DEFENDANT'S MOTION PURSUANT TO 28 U.S.C. § 2255 TO SET ASIDE, VACATE OR AMEND SENTENCE [Doc. No. 25]
On February 23, 2012, pursuant to a written plea agreement, Defendant Jose G. BarajasValdovinos pleaded guilty to a single count Information for attempted illegal re-entry after a prior deportation, in violation of Title 8 of the United States Code, section 1326(a) and (b). See Plea Agreement, Doc. No. 13. The Court sentenced Defendant on June 18, 2012 to 21 months imprisonment, 3 years of supervised release, no fine, and a $100 penalty assessment. See Judgment, Doc. No. 24. Defendant now seeks collateral relief pursuant to Title 28, section 2255. Defendant alleges that his counsel was ineffective; his prior deportation was invalid; his criminal history score was incorrectly calculated; and, he is actually innocent of the re-entry charge because he was under "official restraint" at all times prior to his apprehension at the port of entry. See Motion, Doc. No. 25. For the reasons set forth below, the Court summarily DISMISSES the motion.
Title 28 of the United States Code, section 2255 provides that 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).*fn1 Thus, when a movant 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 may waive his right to file a section 2255 motion to challenge his sentence, but such a waiver must so state expressly. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000). In this case, Defendant's plea agreement provided in part:
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 conviction and sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel, 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.
See Doc. No. 13, 10. The Ninth Circuit approves of such waivers on public policy grounds, reasoning that finality is "perhaps the most important benefit of plea bargaining." United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir. 1990). However, as noted in the plea agreement itself, a defendant may not waive an ineffective assistance of counsel claim challenging the knowing and voluntary nature of the plea agreement or the voluntariness of the waiver itself.
United States v. Jeronimo, 398 F.3d 1149, 1156 n. 4 (9th Cir. 2005).
1. Ineffective Assistance of Counsel Claim
Defendant contends that his counsel was ineffective because he failed to challenge the validity of Defendant's prior deportation; he failed to share discovery materials with Defendant; and he failed to object to the pre-sentence report or move for a downward departure at sentencing based on Defendant's health. Defendant's contentions lack merit.
With respect to his ineffective assistance of counsel claim, Defendant must show deficient performance by counsel and prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir. 1991). In the context of guilty pleas, "to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990).
Defendant argues that his counsel should have moved for a downward departure pursuant to U.S.S.G. § 5H1.4 and/or an adjustment pursuant to 18 U.S.C. § 3553(a) based on the status of Defendant's health, as reported in the Pre-Sentence Report. The sentencing guidelines state:
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm ...