The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
SET ASIDE, OR CORRECT SENTENCE ORDER RE MOTION TO VACATE,
Defendant has filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons below, the Court DENIES Defendant's motion and DENIES a Certificate of Appealability.
On December 14, 2010, Defendant entered a plea of guilty to a single-count indictment charging him with attempted illegal entry by an alien into the United States after deportation and removal in violation of 8 U.S.C. § 1326.
There was no plea agreement reached with the government in this case.
On March 18, 2011, Defendant was sentenced to a 77-month term of imprisonment, 3 years of supervised release, and an assessment of $100. Judgment was entered on March 23, 2011.
On March 24, 2011, Defendant filed a notice of appeal, and on October 18, 2011, the Ninth Circuit summarily affirmed this Court's judgment, stating that "[t]he United States Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), which permits enhancement based on the existence of a prior felony, remains binding on this court until the Supreme Court expressly overrules it." (ECF No. 26.)*fn1 Defendant then filed a petition for a writ of certiorari to the U.S. Supreme Court regarding whether Almendarez-Torres should be overruled (see Def. § 2255 Mot., ECF No. 28, at 3), which was denied on February 21, 2012. (See United States Ex. K, ECF No. 31-11.)
On March 28, 2012, Defendant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 28.) Under § 2255, a prisoner may move to vacate, set aside, or correct his sentence on the ground 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."
Here, Defendant claims that his sentence was based on incorrect information regarding a 1994 case ("1994 case"), a subsequent deportation without due process in 1997 ("1997 deportation"), and ineffective assistance of counsel.
Guilty pleas must be "voluntary... knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). In his § 2255 motion, Defendant claims that his guilty plea was not voluntary or intelligent because "[he] was not advised that [he] could receive [a] 16-Level enhancement for a 1994 Case that [he] was never Convited [sic] of." (ECF No. 28 at 10.) He also alleges that his deportation in 1997 was done "without no Judicial Review and Due Process" based on the 1994 case, which he claims resulted in dismissal, not conviction. (Id. at 5.)
In addition, Defendant claims that he was denied effective assistance of counsel*fn2 because: (1) counsel allowed him to plead guilty to an aggravated felony that was not in the indictment and which he did not agree that he had committed; (2) counsel did not advise him that he could receive a sentence enhancement for "a 1994 case that was Dismissed and a 2008 case" for which he never appeared before a judge; and (3) counsel allowed him to plead to and receive a sentence of over two years "knowing that the sentence rendered [sic] automatically a 16 point Enhancement." (Id. at 11.) He also alleged ineffective assistance of counsel on appeal. (Id. at 12.)
In 1994, Defendant was arrested for possession for sale of a controlled substance, namely cocaine. The Presentence Report ("PSR") indicates that he was arrested on December 1, 1994 and charged with two counts of possession for sale of a controlled substance. (See Ex. A (PSR) at 3.) He was convicted on one count on February 14, 1995, and was sentenced to 36 months of probation and 180 days in jail. (Id.) His probation was revoked on October 24, 1995, and he was sentenced to three years ...