WILLIAM Q. HAYES, District Judge.
The matter before the court is the Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by the Defendant. (ECF No. 26).
On April 18, 2012, Defendant was arrested and subsequently charged with being a removed alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b).
On June 12, 2012, Defendant entered a plea of guilty to an Information charging removed alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b). Prior to the entry of the plea, Defendant and the Government entered into a Plea Agreement "pursuant to an early disposition (Fast-Track) program authorized by the Attorney General of the United States and the United States Attorney for the Southern District of California." (ECF No. 13 at 2). The Plea Agreement provided that the Defendant agreed to waive Indictment and plead guilty to a single-count Information" and "agreed not to file or argue any substantive motions...". Id. The Government agreed to recommend a departure under the United States Sentencing Guidelines § 5K3.1 of 4 levels for fast track and "to recommend that defendant be sentenced to the low end of the advisory guideline range as calculated by the Government at the time of sentencing, pursuant to this agreement." Id. at 9.
On October 16, 2012, the Court held a sentencing hearing. Pursuant to the Plea Agreement, the Government recommended a sentencing guideline range of 8-14 months and a sentence of 8 months. (ECF No. 22). The Court sentenced the Defendant to 8 months in the custody of the Bureau of Prisons and 1 year of supervised release. (ECF No. 25).
On March 7, 2013, Defendant filed a motion pursuant to 28 U.S.C. § 2255. Defendant asserts that he received ineffective counsel because his attorney did not tell him that the immigration judge violated his constitutional rights at the time of his 2002 removal hearing. Defendant contends that he was eligible for two types of relief from deportation: voluntary departure and cancellation of removal at the time of his 2002 deportation hearing.
Plaintiff United States asserts that the Defendant did not qualify for cancellation of removal at his 2002 removal hearing because of his firearm conviction and that the Defendant would not have received discretionary voluntary departure. Plaintiff United States contends that the defense counsel was not required to collaterally attack the prior removal based upon a claim that Defendant should have received relief which the Defendant did not have a reasonable chance of receiving.
28 U.S.C. § 2255 provides:
A prisoner 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 authorized 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.
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 facts 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 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 aside the judgment and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
28 U.S.C. § 2255(a) and (b).
RULING OF THE COURT
In order to prevail on a claim of ineffective assistance of counsel, Petitioner must show that representation of counsel fell below an objective standard of reasonableness, and that any deficiencies in counsel's performance were prejudicial. See Strickland v. Washington, 466 U.S. 688, 690 (1984). Both deficient performance and prejudice are required before it can be said that a conviction or sentence resulted from a breakdown in the adversary process that rendered the result of the proceeding ...