ORDER: (1) DENYING 28 U.S.C. § 2255 MOTION
(2) DENYING MOTION TO EXTEND TIME TO FILE TRAVERSE [Docket Nos. 36, 54]
ROGER T. BENITEZ, District Judge.
Petitioner Israel Lopez-Reyes moves pursuant to 28 U.S.C. § 2255 for a reduction in his sentence. For the reasons stated below, the Court DENIES the motion.
Petitioner Israel Lopez-Reyes is a citizen of Mexico. In 2004, Petitioner pleaded guilty to violation of California Health and Safety Code Section 11351, possession of heroin for sale, and was sentenced to 180 days in custody. On July 1, 2004, Petitioner was deported in connection with this offense and removed to Mexico. The deportation order was reinstated on June 7, 2011, and he was removed to Mexico a second time.
On October 11, 2011, Border Patrol agents discovered Petitioner three miles west of the San Ysidro port of entry and 150 yards north of the United States/Mexico border. Petitioner told the agents that he was a Mexican citizen without legal documentation allowing him to be in the United States. On December 7, 2011, the United States charged Lopez by indictment with one count of violation of 8 U.S.C. § 1326(a) and (b) - deported alien found in the United States.
On March 12, 2012, Petitioner, represented by Attorney Sara D. Brin, entered into a plea agreement with the United States. (Docket No. 22.) In the Plea Agreement, Petitioner certified that he knowingly and voluntarily entered into the Plea Agreement, read it, discussed its terms with his attorney, and fully understood its meaning and effect. He also declared that he had consulted and was satisfied with his attorney.
In addition, Petitioner waived his right to appeal or collaterally attack his conviction or sentence in the Plea Agreement. The Plea Agreement states: "In exchange for the Government's concessions in this plea agreement, defendant waives, 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 imposes a custodial sentence above the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing." ( Id. at 10.)
On March 12, 2012, Petitioner pleaded guilty under the terms of the Plea Agreement. This Court advised Petitioner of the rights he was giving up by pleading guilty, his right to be represented by counsel, the elements the government would have to prove at trial, and the maximum sentence. Petitioner affirmed that he had discussed the Plea Agreement with his attorneys, understood it, and did not have any questions. The Court determined that the plea was made knowingly and voluntarily, and accepted Petitioner's plea.
The Court held a sentencing hearing on July 30, 2012. The Sentencing Guideline range as calculated by the United States was 37 to 46 months. On July 31, 2012, Petitioner was sentenced to 37 months of imprisonment.
Presently before the Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255.
Petitioner's claims arise from his assertion that his 2004 conviction for violation of Section 11351 is invalid because he was denied assistance of counsel during his sentencing hearing. Petitioner claims that as a result: (1) this Court lacked jurisdiction to impose a sentence enhancement based on his uncounseled conviction; (2) Petitioner wrongly received criminal history points for his uncounseled conviction, as well as for a prior Section 1326 offense arising from the uncounseled conviction; (3) Petitioner's 2004 deportation order was invalid because it was based on the uncounseled conviction; accordingly, he could not be guilty of the instant Section 1326 offense because he had never been lawfully deported; and (4) Petitioner received ineffective assistance of counsel when his attorney failed to discover and bring to the Court's attention the fact that his drug trafficking conviction was uncounseled.
I. LEGAL STANDARD
Section 2255 provides that a federal prisoner seeking relief from a custodial sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence" 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 § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise "fundamental defect which inherently results in a ...