ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
[Doc. No. 32 in 12-cr-0185-AJB-1]
ANTHONY J. BATTAGLIA, District Judge.
Presently before the Court is a motion by Petitioner, Lorenzo Jimenez Perez ("Petitioner"), to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. 2255. (Doc. No. 25.) Petitioner, a federal inmate proceeding pro se, seeks relief on the grounds that the court erred by: 1) allowing immigration authorities to place an immigration hold on him; 2) not requiring a jury indictment; 3) ordering supervised release and probation; 4) denying him a fast-track sentence reduction; and 5) failing to advise him of the essential elements of his crime. (Doc. No. 25.) The Government filed a response in opposition on May 10, 2013. (Doc. No. 32.) Having considered the parties' arguments, and for the reasons set forth below, the Petitioner's motion is hereby DENIED.
On December 19, 2011, Petitioner was arrested for violation of 18 U.S.C. § 1544, Misuse of a Passport. (Doc. No. 19.) Pursuant to a Plea Agreement entered February 6, 2012, ("Plea Agreement"), Petitioner plead guilty to 18 U.S.C. § 1544. (Doc. No. 16 ¶ II.) The Plea Agreement set forth that the Petitioner understood he was pleading guilty to an information and agreed to waive indictment. ( Id. ¶ I.) The Plea Agreement further stated that Petitioner "has fully discussed the facts of the case with the defense counsel, " "has committed each of the elements of the crime, " and understands the crime to which he had pleaded guilty carries "a term of supervised release of not more than 3 years." ( Id. ¶¶ I.B, III.D.) The Plea Agreement goes on to state that the Petitioner had "a full opportunity to discuss all the facts and circumstances of this case with defense counsel, " and he had a "clear understanding of the charges and consequences of this plea." ( Id. ¶ VI.A.) Additionally, in exchange for the Government's concessions in the Plea Agreement, Petitioner waived "any right to appeal or collaterally attack the conviction and sentence, " unless the court orders a sentence "above the greater of the high end of the guideline range recommended by the government." ( Id. ¶ XI.)
At a hearing on January 17, 2012 before Magistrate Judge Peter C. Lewis, the Petitioner, with the assistance of a Spanish-language interpreter, stated under oath that he signed and understood the "Waiver of Indictment." (Doc. No. 27 at 3:4-23, Doc. No. 9.) At the Change of Plea Hearing on February 14, 2012 before Magistrate Judge Bernard Skomal, with the assistance of a Spanish-language interpreter, (Govt. Ex. D, at 2:18), the Petitioner pled guilty under a fast-track plea agreement. (Govt. Ex. D.) The Petitioner stated that he understood the nature of his offense, ( Id. at 4:15-16), and that the court would supplement his sentence with a period of supervised release. ( Id. at 5:4-10.)
The Petitioner, with the assistance of a Spanish-language translator, appeared for his Sentencing Hearing before Judge Battaglia on May 3, 2012. (Doc. No. 29 at 2:11-13.) During the hearing, counsel for Petitioner requested that the court grant downward departures based on cultural assimilation under a combination of circumstances under 5K2.0 and over-representation of criminal history. (Doc. No. 29 at 3:20-25.) The Government maintained that the low-end guideline calculation of 21 months was sufficient, but not greater than necessary. ( Id. at 6:7-10). The Court granted the Government's motion for a two-level fast-track sentencing departure, and as a result, the Petitioner's adjusted offense total was within the Government-recommended 21-to-27 month range. ( Id. at 3:6-9.)
On January 29, 2013, Petitioner filed the instant motion alleging the court erred by: 1) permitting the immigration authorities to place an immigration hold on him; 2) not requiring a jury indictment; 3) ordering supervised release and probation; and 4) denying him a fast-track sentence reduction. (Doc. No. 25. at 2-3) Petitioner also contends that he was never advised of the essential elements of his crime and did not have access to a translator during his sentencing. ( Id. at 3.)
In the Ninth Circuit a defendant may waive the statutory right to file a § 2255 petition challenging the length of his sentence. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) cert. denied. A defendant's waiver of his right to appeal is enforceable if the waiver includes the right to appeal based on the grounds defendant raised and he submits to the waiver knowingly and voluntarily. See United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). If the plea is voluntarily and knowingly made, it waives all non-jurisdictional defenses or objections which might have been made, and in turn prevents collateral attack via § 2255 based on those grounds. Burton v. United States, 307 F.Supp. 448, 449 (D. Ariz. 1970). The Ninth Circuit approves of such waivers on public policy grounds because finality is "perhaps the most important benefit of plea bargaining." United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir. 1990).
Under 18 U.S.C.A. § 3742(c)(1), in the case of a plea agreement that includes a specific sentence under Rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure, a defendant may not file an appeal unless the sentence imposed is greater than the sentence set forth in the plea agreement. The word "sentence" encompasses both prison time and periods of supervised release in other parts of Title 18 as well. See United States v. Soto-Olivias, 44 F.3d 788, 790 (9th Cir. 1990).
The only claims that cannot be waived are claims that the plea or waiver itself was involuntary or that it was involuntary due to ineffective assistance of counsel. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005). A district court may not deny a section 2255 petition without a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. In order for the petitioner to qualify for an evidentiary hearing, he must make "specific factual allegations which, if true, would entitle him to relief." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982).
As a preliminary matter, the Court notes that the majority of the Petitioner's motion appears to challenge subsequent immigration and deportation proceedings conducted by the Department of Homeland Security ("DHS"), that were not part of any of the Petitioner's hearings in this Court. These proceedings, and Petitioner's challenges thereto, are outside the scope of a section 2255 petition and therefore not properly before this Court.
In the remaining portions of the Petitioner's motion, he seeks relief under § 2255 on the grounds that "his guilty admission is not valid" in the absence of an indictment "and having a translator to assist the Defendants in his sentencing trial", "particularly if the Defendant's comprehension is questionable." The Petitioner goes on to say "that he only did what his counsel of record told him to say...". Doc. No. 25, at 3. The Petitioner contends that the court erred by: 1) not requiring a jury indictment; 2) ordering supervised release and ...