The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER SUMMARILY DISMISSING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [Doc. No. 25]
On February 9, 2012, pursuant to a written plea agreement, Defendant Cristobal Sandoval pleaded guilty to a single count Information charging him with illegal re-entry subsequent to a prior deportation in violation of Title 8 of the United States Code, Section 1326(a),(b). See Plea Agreement, Doc. No. 12. The Court sentenced Defendant on April 30, 2012 to 30 months imprisonment, 2 years supervised release, no fine, and a $100 penalty assessment. See Judgment, Doc. No. 24. Defendant now moves the Court to vacate, set aside, or correct his sentence under Title 28, section 2255. See Doc. No. 25. Defendant challenges his sentence on the following grounds: (1) the Court erred in imposing a term of supervised release; (2) counsel was ineffective for failing to challenge his prior deportation; and (3) counsel "forced" him to plead guilty. For the following reasons, the Court summarily DISMISSES the motion.
Title 28 of the United States Code, section 2255 provides that if a defendant's motion, file, and records "conclusively show that the movant is entitled to no relief" the Court summarily may dismiss the motion without sending it to the United States Attorney for response. See 28 U.S.C. § 2255(b). The rules regarding Section 2255 proceedings similarly state that the Court summarily may order dismissal of a 2255 motion without service upon the United States Attorney only "[i]f it plainly appears from the face of the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief . . .." Rule 4(a), Rules-section 2255 Proceedings (West 2009).*fn1 Thus, when a defendant fails to state a claim upon which relief can be granted, or when the motion is incredible or patently frivolous, the district court may summarily dismiss the motion. Cf. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989); Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).
A defendant may waive his right to file a section 2255 motion to challenge his sentence, but such a waiver must so state expressly. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000). In this case, Defendant's plea agreement provides in pertinent part:
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 greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing.
See Doc. No. 12 at 10. The Ninth Circuit approves of such waivers on public policy grounds, reasoning that finality is "perhaps the most important benefit of plea bargaining." United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir. 1990). However, as noted in the plea agreement itself, a defendant may not waive an ineffective assistance of counsel claim challenging the knowing and voluntary nature of the plea agreement or the voluntariness of the waiver itself. United States v. Jeronimo, 398 F.3d 1149, 1156 n. 4 (9th Cir. 2005).
Defendant asserts that the Court erred in imposing a term of supervised release because he is an alien and is facing deportation after release from custody. Defendant's claim is without merit. It is not error to impose a term of supervised release in the context of a defendant who will be deported. Congress has recognized deportation as an acceptable condition of supervised release even though the defendant cannot be supervised after deportation: "If an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States." 18 U.S.C. § 3583(d).
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). Here, Defendant claims that his guilty plea was not voluntary or intelligent because his counsel "forced" him to plead guilty. However, Defendant offers no facts in support of his claim that his plea was coerced, simply stating that "counsel informed him that if [he] would not do it, he was going to get a longer sentence." See Def. Motion at 6. The Ninth Circuit has made clear that conclusory allegations unsupported by specific statements of fact or references to the record "do not warrant habeas relief." See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995), quoting James v. Borg, 24 F.3d 20, 25 (9th Cir. 1994). Defendant's claim here is the definition of conclusory, and the record otherwise reflects that Defendant's decision to enter into a plea agreement was his own.
3. Ineffective Assistance of Counsel
Defendant contends that his counsel was ineffective because he failed to challenge the validity of Defendant's prior deportation. Defendant must show deficient performance by counsel and prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir. 1991). In the context of guilty pleas, "to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have ...