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Gerardo Valencia-Avendano v. United States of America

October 4, 2012


The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge


Presently before the Court is Petitioner Gerardo Valencia-Avendano ("Petitioner")'s motion to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. 2255. (Doc. No. 84.) Petitioner, a federal inmate proceeding pro per, seeks relief based on the claim of ineffective assistance of counsel, alleging his attorney, Mr. Jorge Jaramillo, assured him he would receive time served and used coercive tactics to obtain a plea that was not voluntarily made. The Court held a status hearing on October 28, 2012. Petitioner appeared telephonically and Mr. Jaramillo was not present. Having considered the parties' arguments, and for the reasons set forth below, the Court DENIES Petitioner's motion to vacate, set aside, or correct his sentence.


On March 12, 2011, Petitioner was arrested and charged with (1) conspiracy to distribute 115.40 kilograms (253.87 pounds) of cocaine, a Schedule II Controlled Substance, and approximately 3.25 kilograms (7.15 pounds) of methamphetamine. On February 7, 2012, pursuant to a plea agreement ("Plea Agreement"), Petitioner plead guilty to 21 U.S.C. 846 and 841(a)(1), Conspiracy to Distribute Controlled Substances. ( [Plea Agr't] Doc. No. 61, Ex. 1 ¶ I.A.) As part of the Plea Agreement, Petitioner understood that the crime to which Petitioner was charged carried a maximum sentence of life in prison and a mandatory minimum of 10 years. (Id. ¶ III.A.) The Plea Agreement further indicated that Petitioner understood that he was pleading guilty, he "had a full opportunity to discuss all the facts and circumstances of [the] case with defense counsel," and he had a "clear understanding of the charges and the consequences of this plea." (Id. ¶ VI.A.) Additionally, Petitioner expressly "waive[d], to the full extent of the law, any right to appeal, or to collaterally attack the conviction and sentence." (Id. ¶ XI.) Finally, the Plea Agreement stated that "no one had made any promises or offered any rewards in return for this guilty plea . . . no one had threatened defendant or defendant's family to induce the guilty plea," and that Petitioner's ultimate sentence was "within the sole discretion of the sentencing judge."

. ¶¶ VI.B, VI.C, IX.) The Plea Agreement never stated Petitioner would receive a sentence of time served, nor was such a sentence even referenced. (Doc. No. 61.)

On February 7, 2012, four days after Petitioner signed the Plea Agreement, Petitioner admitted at a disposition hearing before Magistrate Judge Gallo that there were no threats or coercion used by anyone in connection with his guilty plea. Such statements were made by Petitioner under oath. Thereafter, on February 14, 2012, pursuant to a Cooperation Agreement ("Cooperation Agreement"), Petitioner testified in connection with the prosecution of Ernesto Schramm ("Schramm"). (Doc. No.

United States v. Ernesto Schramm, Case No.: 12cr0385AJB. Schramm had been arrested with Petitioner and had elected to proceed to trial. At Schramm's trial, Petitioner testified as to the terms of the Plea and the Cooperation Agreements, stating that he understood the terms of both. (Case No.: 12cr0385, Doc. No. 17.) Petitioner further testified that when he was ultimately sentenced, the sentencing judge, and not the Government or his counsel would impose the ultimate sentence. At Schramm's trial, Petitioner never stated he would receive, nor was he promised, a sentence of time served for his testimony. His only reported expectation was that the government would recommend a sentence under the mandatory minimum 120 month sentence, if the Government was satisfied with his cooperation against his co-defendant.

On March 17, 2012, prior to Petitioner's sentence, his attorney submitted a lengthy sentencing memorandum on his behalf. (Doc. No. 101, Ex. 5, pp. 4-8.) On May 24, 2012, the Court sentenced Petitioner to a 51-month sentence based on the following guideline calculations: Base offense level of 38, increased by two levels for importation of methamphetamine, decreased by two levels for safety value, decreased by two levels for combination of factors, decreased three levels for acceptance of responsibility, decreased seven levels for substantial assistance, and decreased two levels for duress. (Doc. No. 82.) Before Petitioner was sentenced, his attorney requested the Court to impose a "time served" sentence. (Doc. No. 101, Ex. 5, p. 8.) The Government submitted that a sentence of 61 months was appropriate. At no time during the sentencing did Petitioner state he had been promised a sentence of "time served."

On June, 15, 2012, Petitioner filed the instant motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel and claiming that his attorney coerced him into pleading guilty and cooperating. The Government filed a response in opposition on September 7, 2011. (Doc. No. 101). On October 3, 2012, the Court received and acknowledged a letter from Petitioner that he had referenced at the status hearing.*fn1 (Doc. No. 109.)


The Ninth Circuit has held that a defendant may waive the statutory right to file a §2255 petition challenging the length of his sentence. See U.S. v. Abarca, 985 F. 2d 1012, 1014 (9th Cir. 1993) cert. , 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed. 2d 677 (1993), U.S. v. Pruitt, 32 F. 3d 431, 433 (9th Cir. 1994). "Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside [the category of ineffective assistance of counsel claims challenging the validity of the plea of the waiver] are waivable." U.S. v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).

The only claims that cannot be waived are claims that the plea or waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver involuntary. See Washington v. Lampert, 422 F. 3d 864, 871(9th Cir. 2005) (holding that plea agreement that waives the right to file a federal habeas petition pursuant to §2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); Pruitt, 32 F. 3d at 433 (expressing "doubt" that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular part of the plea bargain), Abarca, 985 F. 2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver).

The Sixth Amendment guarantees criminal defendants the constitutional right to be represented by counsel at all critical stages of the prosecution. Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002). To prevail on a claim that his trial counsel rendered ineffective assistance, a petitioner must demonstrate that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 688--93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the performance prong of the Strickland test, the Court does not focus on whether counsel's advice was right or wrong, but whether that advice was within the range of competence demanded of attorneys in criminal cases. Turner, 281 F.3d at 881 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). There is a "strong presumption that counsel's conduct falls within the wide range of professional assistance." Strickland, 466 U.S. at 689. Under the prejudice prong, a petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

A petitioner must establish both deficient performance and prejudice in order to establish ineffective assistance of counsel. Strickland, 466 U.S. at 687; United States v. Olson, 925 F.2d 1170, 1173 (9th Cir.1991). "Because failure to meet either prong is fatal to [a defendant's] claim, there is no requirement that [courts] 'address both components of the inquiry if the defendant makes an insufficient showing on one.' " Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir.2011). The Supreme Court has recognized that "[s]urmounting Strickland"s high bar is never an easy task." Padilla v. Kentucky, ------ U.S. --------, --------, 130 S.Ct. 1473, ...

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