The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. Pending before the court are: respondent's motion to dismiss (Doc. 86); and movant's motion for leave to amend (Doc. 87).
Movant was charged with one count of production of child pornography and one count of possession of matter which contained depictions of child pornography. A superceding indictment was later filed alleging an additional count of sex trafficking of a minor. Movant entered into a written plea agreement on April 12, 2010, pleading guilty to the third count of sex trafficking. Regarding the sentence, the agreement permitted movant to argue for a sentence outside the guidelines range provided that no sentence would be lower than the statutory mandatory minimum of ten years. The agreement also permitted the government to argue for a sentence up to the high end of the guidelines rang or 15 years, whichever was higher. The written plea agreement also contained a waiver of movant's rights to appeal or collaterally challenge the conviction or sentence. Finally, the agreement provided that the government would dismiss the first two counts.
In the pre-sentence report prepared by the probation officer calculated movant's offense level to be 31 with a criminal history category IV. The resulting guidelines range was 151 months to 188 months. The report recommended the mandatory minimum of 120 months, constituting a downward departure. At the time of sentencing movant argued for the recommended 120-month sentence. The government argues for 15 years. Movant was ultimately sentenced to 151 months.
In his § 2255 motion, movant raises one claims -- that his attorney was ineffective for failing to object to miscalculation of his criminal history.*fn1 In its motion to dismiss, respondent argues that the court lacks jurisdiction to entertain movant's § 2255 motion because he waived any right to collaterally attack his conviction or sentence. A waiver contained in a valid plea agreement is enforceable and deprives the court of jurisdiction. See Unites States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000); see also United States v. Abarca, 985 F.2d 1012 (9th Cir. 1992). A plea agreement is valid if it is entered into knowingly and voluntarily.
See United States v. Kaczynski, 239 F.3d 1108 (9th Cir. 2001). The scope of the waiver is "demonstrated by the express language of the plea agreement." Anglin, 215 F.3d at 1066.
Whether a plea agreement was made "knowingly and voluntarily" depends on the circumstances surrounding its signing and entry. See Anglin, 215 F.3d at 1066 (citing United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991)). While a plea colloquy pursuant to Federal Rule of Criminal Procedure 11 is not a prerequisite to a valid waiver, see United States v. Michlin, 34 F.3d 896, 898 (9th Cir. 1994), the district court's oral pronouncements are also relevant, see United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Where the trial judge's unambiguous oral pronouncement differs from the written plea agreement, the oral pronouncement controls. See United States v. Buchanan, 59 F.3d 914, 917 (9th Cir. 1995). This is because the Ninth Circuit places a ". . . premium on a defendant's ability to trust a district court's statements. . . ." Anglin, 213 F.3d at 1067 (citing Buchanan, 59 F.3d at 917-18)).
It is unclear in this circuit whether waiver applies to a § 2255 motion raising ineffective assistance of counsel with respect to the plea. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (declining to decide whether waiver forecloses a claim of ineffective assistance of counsel raised in a § 2255 motion); but see United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (citing Pruitt and reviewing ineffective assistance of counsel claim despite waiver). In Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005), a § 22554 case, the Ninth Circuit noted the uncertainty with respect to waivers and § 2255 cases, but held that waivers do not bar ineffective assistance of counsel claims relating to the plea in § 2254 cases. In doing so, the court adopted the Seventh Circuit's reasoning in Jones v. United States, 167 F.3d 1142 (7th Cir. 1999), a § 2255 case. See Washington, 422 F.3d at 871. The court is unaware of any Ninth Circuit authority which expressly reaches the same conclusion in the context of a motion under § 2255, and the parties have cited to none. In an abundance of caution, the court will presume for the moment that an ineffective assistance claim relating to the plea agreement would be allowed.
The gravamen of movant's response to respondent's motion to dismiss is that the waiver was entered into knowingly. Movant states:
In addition to not fully understanding the law terms, counsel misled defendant to believe that there was no other alternative course of action. Counsel presented the defendant with a plea agreement, but never informed the defendant that any aspects of the government could have been disputed, argued, negotiated, or even that an attempt to negotiate any of the conditions or terms of the agreement could have been made.
Movant also states that ". . . counsel simply told him [Epps] that the legal language of the waivers meant that if he wasn't satisfied with his sentence, he couldn't take it back and opt to go to trial just because he didn't obtain the desired outcome."
The argument that movant did not understand the terms of the plea agreement due to counsel's perceived ineffectiveness is not supported by the record. In the written agreement itself, just ...