United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 Civil Docket No. 1/Criminal Docket No. 25
ROGER T. BENITEZ, District Judge.
Before this Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Petitioner Liberato Contreras-Sanchez. (Docket No. 25).
Petitioner, who is not a United States citizen, was deported from the United States in November 2006 following a 2002 felony conviction in the Northern District of Illinois for attempting to posses with intent to distribute cocaine. (Plea Ag., Gov. Ex. 5, ¶ 3). Petitioner attempted to re-enter the United States without the express consent of the Attorney General, or his designated successor, the Secretary of the Department of Homeland Security. ( Id. ) Petitioner was charged by information on August 24, 2010 with violating 8 U.S.C. § 1326(a) and (b). (Information, Gov. Ex. 3).
Petitioner signed a fast-track plea agreement with the Government on September 16, 2010. (Plea Ag.) Petitioner agreed to plead guilty to a violation of 8 U.S.C. § 1326(a) and (b), which carries a maximum term of imprisonment of 20 years. ( Id. ¶ 1). Petitioner admitted to committing the elements of the offense and agreed to certain facts, including the fact that he had previously been deported following a prior aggravated felony conviction. ( Id. ¶ 3). The parties agreed to sentencing guidelines calculations that reduced Petitioner's offense level by five levels for acceptance of responsibility and acceptance of a fast-track offer. ( Id. ¶ 4). The Government agreed to recommend that Petitioner be sentenced to the low end of the guidelines range, followed by three years of supervised release. ( Id. ¶ 8).
Petitioner pled guilty before Magistrate Judge Jan M. Adler on September 21, 2010. (Plea Hearing Tr., Gov Ex. 6). Petitioner was sentenced by this Court to 37 months of imprisonment on December 9, 2010. (Sentencing Hearing Tr., Gov. Ex. 7).
Petitioner signed the instant Motion on January 24, 2012. Petitioner makes two claims of ineffective assistance of counsel: (1) counsel failed to file a notice of appeal after Petitioner requested it, and (2) counsel failed to object to a sentence that exceeded the statutory maximum. For the reasons stated below, the Motion is DENIED.
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).
Review of the record in this matter reveals that Petitioner's claims are barred by his valid waiver of his collateral attack rights. Petitioner's claim regarding the statutory maximum also fails on the merits.
As part of the plea agreement, Petitioner agreed to waive his right to collaterally attack his sentence. (Plea Ag. ¶ 11). 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); ...