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Francisco Joel Montelongo-Monteon v. United States of America

March 4, 2013

FRANCISCO JOEL MONTELONGO-MONTEON,
DEFENDANT-PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING MOTION

TO VACATE [DOC 194.]

On August 24, 2012, Petitioner Francisco Joel Montelongo-Monteon ("Petitioner"), a federal prisoner proceeding pro se, commenced this Section 2255 habeas corpus proceeding*fn1 (Pet. [Doc. 194].*fn2 ) On October 22, 2012, Respondent United States of America ("Respondent" or "Government") filed a Response in Opposition to Petitioner's Motion for Relief under 28 U.S.C. § 2255 (Respt's Opp'n ("Opposition") [Doc. 200]). On November 15, 2010, Petitioner filed a Reply to Respondent's Opposition to Motion to Vacate under 28 U.S.C. § 2255 (Petr's Reply ("Reply") [Doc. 202]).

The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1 (d.1). For the reasons stated below, the Court DENIES the Motion to Vacate.

I. BACKGROUND

On August 21, 2009, a federal grand jury returned two indictments against Petitioner, indictment 09-CR-3133 W, and indictment 09-CR-3134 W. Indictment 09-CR-3133 W contained counts for: (Count 1)conspiracy to import 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 952, 960, and 963; (Count 2)conspiracy to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846; (Count 3) knowingly and intentionally possessing 50 kilograms or more of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (Count 4) knowingly and intentionally possessing 100 kilograms or more of marijuana with intent to distribute in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. § 2. (See Indictment 09-CR-3133 W [Doc. 1].)

Indictment 09-CR-3134 W contained counts for: (Count 5)conspiracy to import 1000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 952, 960, and 963; (Count 6) conspiracy to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846(a)(1) and 846; (Count 7) knowingly and intentionally possessing 100 kilograms or more of marijuana with intent to distribute in violation of 21 U.S.C. § 846(a)(1) and 18 U.S.C. § 2; and (Count 8)knowingly and intentionally possessing 100 kilograms or more of marijuana with intent to distribute in violation of 21 U.S.C. § 846(a)(1) and 18 U.S.C. § 2. (See Indictment 09-CR-3134 W [Doc. 1].*fn3

On August 25, 2009, law enforcement arrested Petitioner. On March 31, 2011, Petitioner entered into a plea agreement with Respondent and Petitioner pled guilty to participating in a conspiracy to import over 100 kilograms of marijuana and a conspiracy to distribute over 1000 kilograms of marijuana. (Plea Agreement ("Plea Agreement")2 [Doc. 164].) In exchange for Petitioner's guilty plea and a stipulated 144 month sentence, Respondent dismissed the six counts remaining against Petitioner. (Id. at 2,10.) On May 13, 2011, the United States Probation Office filed a pre-sentence report that explained that sentencing guidelines for the remaining counts were 120 to 135 motnhs. (Pre-Sentence Report ("PSR") 24 [Doc.170].)

Petitioner's Plea Agreement included an appeal waiver that stated: In exchange for the Government's concessions in this plea agreement, [Petitioner] waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order, unless the Court imposes a custodial sentence above the greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing[.] (Plea Agreement 11). The plea agreement also provided:

By signing this agreement, [Petitioner] certifies that [Petitioner] has read it (or that it has been read to [Petitioner] in [Petitioner's] native language). [Petitioner] has discussed the terms of this agreement with defense counsel and fully understands its meaning and effect . . . [Petitioner] has consulted with counsel and is satisfied with counsel's representation. (Plea Agreement 12-13). Defendant signed the Plea Agreement and initialed each page. (See id.)

On August 31, 2011, the Court accepted the Plea Agreement and sentenced Petitioner to 144 months in prison. (Judgment [Doc.190].) On August 24, 2012, Petitioner commenced this proceeding and filed a Motion to Vacate pursuant to 28 U.S.C. § 2255, alleging his circumstances fit an exception to the appeal waiver, allowing him to collaterally attack his sentence for ineffective assistance of counsel. (Pet. [Doc. 194). Respondent opposes.

II. LEGAL STANDARD

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 ยง 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." ...


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