ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255
MARILYN L. HUFF, District Judge.
On December 26, 2012, Carlos Guadalupe Gonzalez ("Petitioner"), proceeding pro se, filed a petition to vacate, set aside, or correct his sentence ("Petition") pursuant to 28 U.S.C. § 2255. (Doc. No. 41.) Petitioner seeks habeas relief on the grounds that his indictment charging him with violating 18 U.S.C. § 841 (a)(1) is unconstitutional. (Doc. Nos. 41 at 1-3, 26.) But Petitioner pled guilty to a violation of 18 U.S.C. § 545 pursuant to a written plea agreement, and the Court dismissed the indictment charging him with the violation of 21 U.S.C. § 841(a)(1). (Doc. No. 26.) On May 15, 2013, the government filed a response in opposition. (Doc. No. 46.) For the reasons set forth below, the Court denies the petition.
On September 1, 2010, a federal grand jury returned an indictment charging Petitioner with one count of possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one count of unlawful importation of a controlled substance, in violation of 21 U.S.C. §§ 952 and 960. (Doc. No. 9 at 1-2.) On August 19, 2010, Petitioner entered the United States from Mexico at the Otay Mesa, California Port of Entry as the sole occupant of a 2001 Chevrolet Malibu. (Doc. No. 46 at 2.) As the inspector examined the vehicle, he noticed that there were very little personal effects within. (Id.) The inspector removed the rocker panel of the vehicle and found packages wrapped in black tape. (Id.) An agent took custody of the vehicle and utilized a narcotic detector dog which alerted leading to the discovery of 7.34 kilograms of methamphetamine within Petitioner's vehicle. (Doc. No. 9 at 2.)
On January 18, 2011, the government filed a superseding information charging Petitioner with one count of a violation of 18 U.S.C. § 545, importation contrary to law. (Doc. No. 21.) On January 18, 2011, Petitioner pled guilty to the violation of 18 U.S.C. § 545 in the superceding information pursuant to a written plea agreement. (Doc. No. 26.) In return for the government's concessions in the plea agreement, Petitioner waived his right to appeal or collaterally attack his conviction. (Id. at 8-9.)
At sentencing, Petitioner requested an eighteen month sentence. (Doc. No. 32 at 1.) The government requested a forty-eight month sentence. (Doc. No. 28 at 2.) After considering the advisory guidelines and the sentencing factors set forth in 18 U.S.C. §3553(a)(1), the Court sentenced Petitioner on May 9, 2011 to thirty-seven months imprisonment for a violation of 18 U.S.C. § 545. (Doc. No. 34 at 1-2.) In addition, the Court granted the government's motion to dismiss the indictment including the violation of 21 U.S.C. § 841(a)(1). (Doc. No. 33.)
On December 6, 2012, Petitioner filed a notice of appeal. (Doc. No. 36.) On December 14, 2012, the Ninth Circuit ordered Petitioner to file a motion for voluntary dismissal of the appeal or show cause in writing why it should not be dismissed for lack of a timely notice of appeal. (Doc. No. 39.) On January 22, 2013, the Ninth Circuit granted Petitioner's motion for voluntary dismissal of his appeal. (Doc. No. 42.)
On December 26, 2012, Petitioner filed his petition for habeas corpus. (Doc. No. 41.) Petitioner argues that the Court should dismiss the indictment for Possession of a Controlled Substance with the Intent to Distribute, in violation of section 841(a)(1), because section 841(a) fails to provide proper notice of potential punishment in violation of the Supreme Court's ruling in Apprendi v. New Jersey , 530 U.S. 466 (2000). (Doc. No. 41 at 1.) On May 15, 2013, the government filed its opposition, arguing that the petition should be denied because it lacks merit, is time-barred, and Petitioner waived his right to collateral attack in his plea agreement. (Doc. No. 46 at 2.)
I. Legal Standard for Petitions Under 28 U.S.C. § 2255
Petitioner challenges his conviction and sentence pursuant to 28 U.S.C. § 2255. Section 2255 authorizes the Court to "vacate, set aside, or correct the sentence" of a federal prisoner on "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...." 28 U.S.C. § 2255(a). To warrant relief under section 2255, a prisoner must allege a constitutional or jurisdictional error, or a "fundamental defect which inherently results in a complete miscarriage of justice [or] omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck , 441 U.S. 780, 783 (1979).
II. Petitioner's Request for Dismissal of Indictment Under Section 841(a)
On January 18, 2011, the government filed a superceding information charging Petitioner with violating 18 U.S.C. § 545. (Doc. No. 21.) On May 9, 2011, this Court dismissed the indictment charging Petitioner with violating 21 U.S.C. § 841(a)(1) on the government's motion. (Doc. No. 34 ...