The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255 [DOC. 20]
On July 30, 2012, Petitioner Jesus Casares-Alvarado, a federal prisoner proceeding pro se, commenced proceedings for habeas corpus relief under 28 U.S.C. § 2255.(Pet. [Doc. 20].) Respondent United States of America ("Government") opposes. (Gov't Opp'n [Doc. 22].) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. L.R. 7.1(d.1). For the reasons below, the Court DENIES Petitioner's request for habeas relief.
On March 26, 2012, Petitioner pled guilty before this Court to one count of illegal re-entry of a removed or deported alien in violation of 8 U.S.C. § 1326.(Plea Agreem't [Doc. 11] 2-3.) Petitioner's plea was taken after he entered into a plea agreement with the Government.(See Plea Agreem't.) For sentencing purposes, Petitioner and the Government jointly recommended a base offense level of 8, -2 or -3 for acceptance of responsibility, and -2 for departure for Fast-Track.(See id. at 7.) Petitioner also purported to waive his right to appeal and to collaterally attack his resulting conviction and sentence under certain conditions:
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 high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing. term. If the custodial sentence is greater than the high end of that range, the defendant may appeal, but the Government will be free to support on appeal the sentence actually imposed. If defendant believes the Government's recommendation is not in accord with this plea agreement, defendant will object at the time of sentencing; otherwise the objection will be deemed waived.
Petitioner expressly acknowledged the knowing and voluntary nature of his guilty plea, and his understanding of the terms of the plea agreement therein. (Id. at 5, 11.)
On June 25, 2012, the Court conducted a sentencing hearing. (See Gov't Opp'n 3:15-16.) The Court sentenced Petitioner to a term of custody of 50 months, reflecting the low-end of the guideline range for the new offense level, including one year of supervised release. (Pre-Sentence Rep. [Doc. 13] 9; Judgment [Doc. 18] 3.)
On July 30, 2012, Petitioner filed his present motion for habeas relief under 28 U.S.C. § 2255. (See Pet.) Petitioner alleges two grounds for relief*fn1 : (1) violation of due process under the Fifth Amendment and (2) ineffective assistance of counsel. (Id. at 6-7.) Petitioner seeks to stay the judgment of removal and dismiss the deportation order. (Id. at 3.) The Government opposed Petitioner's motion on September 19, 2012. (See Gov't Opp'n.)
Under 28 U.S.C. § 2255, a federal sentencing court is authorized to discharge or re-sentence a defendant if it concludes 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). This statute is intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. See United States v. Addonizio, 442 U.S. 178, 185 (1979); Hernandez v. Campbell, 204 F.3d 861, 864 n.4 (9th Cir. 1999).
The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979). But this "does not encompass all claimed errors in conviction and sentencing." Id. at 187. A mere error of law does not provide a basis for collateral attack unless the claimed error "resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995) (quoting United States v. Timmreck, 441 U.S. 780, 783-84 (1979)).
Petitioner argues two grounds for relief under § 2255: violation of due process and ineffective assistance of counsel. (Pet. 6.) In its opposition, the Government contends that Petitioner's right to collaterally attack his conviction and sentence through § 2255 is waived as a consequence of ...