The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
(1) DENYING PETITIONER'S MOTION FOR TIME REDUCTION PURSUANT TO 28 U.S.C. § 2255 [Doc. No. 29 in 12-cr-1781]; and (2) DENYING CERTIFICATE OF APPEALABILITY
Petitioner Jose Alatorre- Espinoza ("Petitioner"), a federal inmate proceeding pro se, submitted a motion for a time reduction of his sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 29 in 12-cr-1781.] He seeks relief on the grounds that, due to his alien status, he is ineligible for a one-year reduction of sentence through a drug program, an early release to a halfway house, and a Unicor job. [Id. at 2.] Petitioner argues that the availability of these programs to U.S. citizens, but not to aliens, violates the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment, and the "Equal Right Act." [Id. at 2-3.] Having considered Petitioner's arguments, and for the reasons set forth below, the Court DENIES Petitioner's motion for time reduction pursuant to 28 U.S.C. § 2255.
Petitioner was charged with, and ultimately pled guilty to, violation of 8 U.S.C. § 1326 for attempted re-entry of removed alien. [Doc. No. 28, Judgment at 1.] As part of his Plea Agreement, Petitioner expressly "waive[d], 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 impose[d] 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." [Doc. No. 13, Plea Agreement at 10.] On August 28, 2012, this Court sentenced Petitioner to 18 months in federal custody, which is significantly lower than the 30 to 37 months guidelines range recommended by the Government [Doc. No. 18, Sentencing Summary Chart], and supervised release for a term of two years. [Doc. No. 28, Judgment.]
Section 2255(a) authorizes the Court to "vacate, set aside or correct" a sentence of a federal prisoner that "was imposed in violation of the Constitution or laws of the United States." Claims for relief under § 2255 must be based on some constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (internal quotation marks omitted). If the record clearly indicates that a petitioner does not have a claim or that he has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record," a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
Petitioner under the plea agreement waived his rights to collaterally attack his sentence. "A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (citation omitted). In the present case, as part of his plea agreement, Petitioner expressly waived "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 impose[d] 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." [Doc. No. 13, Plea Agreement at 10.]
At sentencing, the Court imposed a sentence of 18 months, which is significantly lower than the Government's recommended guideline range of 30 to 37 months. [Doc. No. 18, Sentencing Summary Chart.] Because the Court did not impose a sentence above the high end of the guidelines range recommended by the Government, waiver applies. Nor is there any indication that Petitioner's waiver was not knowingly or voluntarily made. Further, Petitioner does not assert a claim of ineffective assistance of counsel. Accordingly, Petitioner's valid waiver precludes collateral attack on his sentence. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see also United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990) (public policy supports plea agreements because, inter alia, of the finality that results).
Even assuming Petitioner did not waive the right to collaterally attack his sentence, his claims fail on the merits.
Aliens present in the United States illegally are entitled to the full protections of the Equal Protection Clause. Plyler v. Doe, 457 U.S. 202, 215 (1982). Nonetheless, to state a claim for violation of the Equal Protection Clause, the plaintiff must allege that he was treated differently from other similarly situated persons. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Unless a suspect classification is present, the unequal treatment must only be "rationally related to a legitimate state interest." Id. at 440.The Supreme Court has ruled that undocumented aliens are not a suspect class, Plyler, 457 U.S. ...