The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT A CERTIFICATE OF TO 28 U.S.C. § 2255 AND DENYING APPEALABILITY
On August 11, 2011, Petitioner Eduardo Pegueros, proceeding pro se, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 284 ("Pegueros Br.").)*fn1 On October 28, 2011, the government filed a response to Mr. Pegueros's motion. (Doc. 290 ("Government Br.").) On November 16, 2011, the Court received from Mr. Pegueros a request to continue the motion hearing date. (Doc. 295.) The Court granted Mr. Pegueros's request and continued the deadline for Mr. Pegueros to submit his reply brief from December 2, 2011, to December 30, 2011. (Doc. 292.) Ultimately, however, the Court never received a reply brief from Mr. Pegueros. The Court has reviewed the record, the parties' submissions, and the supporting exhibits attached thereto, and for the reasons set forth herein, the Court DENIES Mr. Pegueros's motion.
On December 11, 2008, Mr. Pegueros was charged with one count of Conspiracy to Conduct Enterprise Affairs Through a Pattern of Racketeering ("Count 1"). (Doc. 1.) On February 26, 2009, a grand jury returned a superceding indictment adding one count of knowingly and intentionally conspiring to distribute 500 grams and more of methamphetamine ("Count 2"), and one count of being a felon in possession of a firearm ("Count 3"). (Doc. 29.)
On October 28, 2009, Mr. Pegueros pleaded guilty to Count 1 pursuant to a written plea agreement. (Doc. 101.) On November 3, 2010, the Court sentenced Mr. Pegueros to a term of imprisonment of 82 months and a term of supervised release of three years.
Mr. Pegueros's motion fails for two reasons: First, he waived his right to collaterally attack his conviction and sentence, and second, his individual claims of ineffective assistance of counsel lack merit.
A voluntary waiver of appeal or collateral attack of a conviction and sentence is enforceable. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). The Ninth Circuit approves of such waivers on public policy grounds, as finality is "perhaps the most important benefit of plea bargaining." United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir. 1990).
If ineffective assistance of counsel renders the plea agreement containing the waiver involuntary, the defendant may appeal or collaterally attack his sentence. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that "a plea agreement that waives the right to file a federal habeas petition under 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim that challenges the voluntariness of the waiver"). See also Pruitt, 32 F.3d at 433 (expressing "doubt" that such a waiver could be enforceable in a § 2255 context).
The plea agreement in the present case, under a paragraph entitled "Defendant Waives Appeal and Collateral Attack," provides:
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, including any restitution order. (Doc. 101 at 11.) Mr. Pegueros has not alleged that the government failed to perform its obligations under the plea agreement. Indeed, the government dismissed the remaining charges (Government Br. Ex. 3 ("Sentencing Transcript") at 36), and fulfilled its obligation to "recommend Defendant be sentenced at the low-end of the resulting Guideline range as contemplated by this agreement." See Doc. 101 at 10; Sentencing Transcript at 26-27 (documenting discussion regarding government's recommendation, in which Court stated its belief that government is in compliance with plea agreement, and Mr. Pegueros waived challenge to government's sentencing recommendation).
Consequently, the waiver contained in the plea agreement forecloses Mr. Pegueros's present challenge unless he can establish that he did not knowingly and voluntarily enter the plea agreement generally or the waiver provision in particular--either as a result of ineffective assistance of counsel or otherwise. In this vein, Mr. Pegueros claims: "Counsel failed to review the case with Petitioner so that Petitioner adequately understood the charges brought against him by the federal government. And failed to adequately explain the plea
[a]greement to Petitioner's understanding." (Pegueros Br. at 6.) Mr. Pegueros does not provide any factual basis to support these allegations. The record of this case, on the other hand, ...