ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (Doc. 18)
ANTHONY W. ISHII, District Judge.
Petitioner Raul Estrada ("Petitioner") has filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. For reasons discussed below, the motion shall be DENIED.
FACTS AND PROCEDURAL BACKGROUND
Petitioner is a native of Mexico and is not a citizen of the United States of America. (Doc. 15.) In 1988, Petitioner was convicted of violating California Health and Safety Code § 11351 for possession of a narcotic controlled substance, and was sentenced to imprisonment for a term of 240 days (Santa Barbara County Superior Court Case No. 17330). (Doc. 20.)
On or about August 25, 1993, Petitioner was convicted of violating Cal. Health & Safety Code § 11351 (2011) for possession for sale of heroin, and was sentenced to imprisonment for a term of 36 months (Santa Barbara County Superior Court Case No. 198392). (Doc. 15.)
On or about May 10, 2009, Petitioner was removed from the United States. He was later found in California on or about August 9, 2010. Id. His re-entry was without permission, and the Government filed an indictment against him for illegal reentry after deportation under 8 U.S.C. § 1326. Id. On September 9, 2011, Petitioner and the Government entered into a plea agreement. On September 12, 2011, Petitioner was sentenced to 46 months in prison followed by a 36-month term of supervised release. (Doc. 19.)
On August 9, 2012, Petitioner filed this motion pursuant to 28 U.S.C § 2255, alleging ineffective assistance of counsel. (Doc. 20.) Specifically, Petitioner contends his 1988 and 1993 convictions were too old to have been considered in enhancing his section 1326 sentence, and counsel should have challenged the use of these convictions. Id.
The government has not filed an opposition.
"In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of his detention.'" Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (quoting Lorentsen v. Hood, 223 F.3d 950, 943 (9th Cir. 2000)). Under § 2255, "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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 imposed by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id., § 2255(b). "In determining whether a hearing and findings of fact and conclusions of law are required, [t]he standard essentially is whether a movant has made specific factual allegations that, if true, state a claim on which relief could be granted.' Under this standard, a district court may summarily dismiss a § 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are palpably incredible or patently frivolous.'" U.S. v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)) (internal citations omitted).
1. The Court's consideration of Petitioner's 1993 conviction was proper.
Sentencing guideline ranges must be considered by the court in sentencing, but are advisory in nature. United States v. Booker, 543 U.S. 220, 245 (2005). The Federal Sentencing Guidelines in effect at the time of Petitioner's sentencing established a base offense level of 8 for unlawfully entering or staying in the United States. U.S.S.G. § 2L1.2(a) (2011). If a defendant was previously deported or remained unlawfully in the United States after "a conviction for a felony that is (i) a drug trafficking offense for ...