United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
[Criminal Docket Nos. 26, 28, 31/Civil Docket No. 1, 2]
ROGER T. BENITEZ, District Judge.
Before this Court are a series of Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed by Petitioner Andres Fuentes-Jardon. (Docket Nos. 26, 28, 31). For the reasons stated below, Petitioner's Motions are DENIED.
Petitioner, a Mexican citizen, was discovered by a Border Patrol Agent inside the United States on April 1, 2012. (Plea Ag. ¶ I). Petitioner did not have permission from the Attorney General, or his designated successor, the Secretary of the Department of Homeland Security, to be in the United States. ( Id. ) Petitioner had a prior felony conviction for robbery, and had been deported from the United States on November 17, 2010. ( Id. ¶ 2(B)). Petitioner was arraigned on an Information charging him with a violation of 8 U.S.C. § 1326 on April 24, 2012. (Docket No. 7).
Petitioner signed a plea agreement with the Government on May 9, 2012. (Plea Ag. at 12). Petitioner agreed to plead guilty to the Information. ( Id. ¶ I). The parties agreed to reduction in his offense level for acceptance of responsibility and acceptance of a fast-track plea agreement. ( Id. ¶ X). The Government also agreed to recommend that Petitioner be sentenced to the low end of the sentencing guidelines. ( Id. ¶ X(F)).
Petitioner entered a plea of guilty before Magistrate Judge Ruben B. Brooks on May 31, 2012, and the plea was accepted by this Court on June 22, 2012. On September 4, 2012, this Court sentenced Petitioner to 37 months in custody. On October 5, 2012, Petitioner filed his first Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Docket No. 26). He submitted supplemental § 2255 motions on November 5, 2012 and March 11, 2013. (Docket Nos. 28, 31).
In his original Motion, Petitioner asks that this Court reduce his sentence because his deportable alien status prevents him from being housed at certain facilities, and because his alien status deprives him of certain benefits and privileges. (Mot.) In his November 5, 2012 motion, Petitioner asks that this Court modify his sentence because his daughters need him, he came to the United States because they are U.S. citizens, and he does not want to deny their rights by taking them to Mexico. (Am. Mot.) In his March 11, 2013 motion, Petitioner argues that he was improperly sentenced because it was a civil case, and because the guidelines calculations improperly considered a conviction more than ten years old. (Second Am. Motion at 5). Petitioner also asserted in his second amended motion that his attorney should have paid attention to the fact that the prior case was more than 12 years old. ( Id. ) Finally, the second amended motion argues that his sentence was "too long." ( Id. ) Although Petitioner's argument is difficult to read, he appears to base this on his earlier arguments and the fact that the sentencing table is not mandatory. ( Id. )
II. Legal Standard
A district court may "vacate, set aside or correct" a sentence of a federal prisoner that was imposed in violation of the Constitution or a law of the United States. 28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing before denying a § 2255 motion, unless it is conclusively shown that the prisoner is entitled to no relief. 28 U.S.C. § 2255(b). However, if it is clear the petitioner has failed to state a claim, or has "no more than conclusory allegations, unsupported by facts and refuted by the record, " a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986).
A. Petitioner Waived His Right to Collateral Attack
Review of the record in this matter reveals that most of Petitioner's claims are barred by his valid waiver of his collateral attack rights.
As part of the plea agreement, Petitioner agreed to waive his right to collaterally attack his sentence. (Plea Ag. ¶ XI). The Ninth Circuit has upheld the validity of waivers of the right to collateral attack a sentence pursuant to § 2255. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993). Waivers in plea bargaining are "an important component of this country's criminal justice system." United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (citation omitted) (in the context of a waiver of right to appeal). The Ninth Circuit has held that public policy strongly supports plea agreements. Id. Plea bargaining saves the state time and money, allowing it to promptly impose punishment without expending resources. Id. at 322 (citing Town of Newton v. Rumery, 480 U.S. 386, 393 n.3 (1987)). Additionally, and "perhaps the most important benefit of plea bargaining, is the finality that results." Id. at 322.
The right of collateral attack in a criminal case is purely statutory. Abarca, 985 F.2d at 1014. A waiver of the right to collateral attack will be upheld where it was "knowing and voluntary." Id. A knowing and voluntary waiver is enforceable where the language of the waiver encompasses the grounds raised. See Patterson-Romo v. United States, No. 10-cr-3319, No. 12-cv-1343, 2012 WL 2060872, at *1 (S.D. Cal. June 7, 2012); United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir.2011) (citation omitted) (discussing the right to appeal).
1. Knowing and Voluntary
The waiver of a statutory right to challenge a conviction or sentence is knowing and voluntary if the plea agreement as a whole was knowing and voluntary. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.2005) (discussing the right to appeal) (overruled on other grounds); United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir.1999) ("waivers of appeal must stand or fall with the agreement of which they are a part") (internal quotations and citations omitted). A waiver will be considered knowing and voluntary where the plea colloquy satisfies Rule 11, and the record reveals no misrepresentation or gross mischaracterization by counsel that tainted the plea. See United States v. Sepulveda-Iribe, 197 Fed.Appx. 592, 592 (9th Cir. 2006) (citing Jeronimo, 398 F.3d at 1157 n.5) (discussing ...