The opinion of the court was delivered by: United States District Judge Honorable Barry Ted Moskowitz
ORDER DENYING § 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY
Jorge Luis Ocampo-Villanueva ("Defendant"), a federal inmate proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Defendant's motion is DENIED.
In an Information filed on June 9, 2011, Defendant was charged with a violation of 8 U.S.C. § 1326 (a) and (b), deported alien found in the United States. (ECF No. 10.) Defendant waived indictment and subsequently pled guilty pursuant to a Plea Agreement. (ECF Nos. 11, 20.) As part of the Plea Agreement, Defendant acknowledged that sentencing was within the sole discretion of the sentencing judge. (Plea Agreement 6, ECF No. 17.) Defendant also stipulated to an order of removal from the United States upon serving his criminal sentence and waived his right to appeal or collaterally attack his conviction or sentence. (Id. at 9-10.)
During sentencing, counsel for Defendant calculated a guideline range of 27 to 33 months and recommended 27 months imprisonment. (Def.'s Sentencing Chart, ECF No. 23.) The Government calculated a guideline range of 27 to 33 months and recommended 27 months of custody, 3 years of supervised release, and $100 special assessment. (Gov't Sentencing Chart, ECF No. 22.) On October 21, 2011, the Court sentenced Defendant to 27 months imprisonment and 3 years of supervised release.
Defendant alleges three claims. First, Defendant requests that the Court reduce his sentence based on his status as a deportable alien. Second, Defendant contends that his attorney failed to exercise certain skills during plea negotiations, sentencing, and interviews, which the Court construes as ineffective assistance of counsel claims. Third, Defendant argues that as a deportable alien, he is ineligible for certain programs, and this ineligibility violates due process, equal protection, and the "Equal Right Act."*fn1
Defendant has not stated a viable claim for ineffective assistance of counsel, which if successful, would have rendered the waiver invalid. As a result, Defendant's waiver is valid and precludes the instant collateral attack on his sentence. Further, even assuming Defendant's motion was not barred, his due process and equal protection claims fail on the merits.
As part of Defendant's Plea Agreement, Defendant waived the right to collaterally attack his sentence. Defendant, however, has alleged an ineffective assistance of counsel claim concerning Defendant's guilty plea itself. The Court must therefore address whether Defendant's ineffective assistance of counsel claim renders the waiver invalid.
A waiver of a defendant's appellate rights is enforceable if the waiver's language encompasses the right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004). The Ninth Circuit has held that a defendant may also waive the right to collaterally attack his sentence if the plea agreement does so expressly. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).
If, however, 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 "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"); see also Pruitt, 32 F.3d at 433 (expressing "doubt" that a waiver of an IAC claim could be enforceable in a § 2255 context).
Here, Defendant entered a Plea Agreement, filed on June 30, 2011, that expressly waived his right to ...