United States District Court, S.D. California
ORDER DENYING § 2255 MOTION AND GRANTING A CERTIFICATE OF APPEALABILITY
BARRY TED MOSKOWITZ, Chief District Judge.
Defendant Travis Chelberg has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the reasons discussed below, Defendant's motion is DENIED.
I. PROCEDURAL BACKGROUND
On February 5, 2009, a grand jury sitting in the Southern District of California returned a two-count indictment against Defendant, charging him with being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g), and 924(a)(1).
On May 28, 2009, the grand jury returned a three-count superseding indictment that included the additional charge of a conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846.
On February 12, 2010, a second superseding indictment was returned, charging Defendant with one count of being a felon in possession of a firearm and one count of conspiracy to distribute methamphetamine.
On May 7, 2010, in a separate criminal case (10cr1753 BTM), Defendant was charged with assaulting an inmate with the intent to dissuade him from testifying in a separate case.
On June 21, 2010, the United States filed a notice of its intent to seek an enhanced penalty under 21 U.S.C. §§ 841, 846, and 851 based on Defendant's prior conviction for a felony drug offense.
On December 3, 2010, a superseding information was filed, charging Defendant with one count of assault within the special maritime and territorial jurisdiction of the United States with the intent to commit a felony (witness tampering) in violation of 18 U.S.C. §§ 113(a)(2) and 7, and one count of being a felon in possession of a firearm.
On December 3, 2010, Defendant pled guilty to the superseding information. Defendant entered his plea of guilty pursuant to a written plea agreement ("Plea Agreement"). (Doc. 129.) In the Plea Agreement, Defendant and the government agreed that Defendant was a career offender (Plea Agreement § X, ¶ D.) The parties agreed to jointly recommend that Defendant be sentenced to 14 years (168 months). (Plea Agreement § X, ¶ G.) In exchange for the government's concessions, Defendant agreed to waive any right to appeal or collaterally attack the conviction. (Plea Agreement § XI.)
On February 24, 2012, the Court sentenced Defendant to a term of 168 months in accordance with the joint recommendation of the parties. The Court reasoned that taking into consideration the serious nature of the offenses, including an assault with a razor blade, and the fact that the government was dismissing a case where there was a mandatory minimum sentence of 20 years to life based upon a methamphetamine charge, anything less than 168 months would not accomplish the purposes of § 3553(a). (Tr. of Sent. Hr'g (Gov't Ex. 2) 52-54.) Although Defendant did not agree that he qualified as a career offender, the Court found that he was a career offender based on two qualifying offenses - a 1996 conviction for assault with a firearm (Cal. Penal Code § 245(a)(2)) and a 1999 conviction for possession of a controlled substance for sale (Cal. Health & Safety Code § 11378).
Defendant seeks to vacate his sentence on the ground that he is not a career offender. Defendant contends that (1) his attorney, Knut Johnson, provided ineffective assistance of counsel in failing to properly research whether Defendant's prior convictions qualify as predicate felony convictions for purposes of USSG § 4B1.1, and failing to advise Defendant that he was not a career offender; and (2) the Court erred in finding that he was a career offender and sentencing him to 168 months.
The government argues that Defendant waived his right to collateral attack in the Plea Agreement. A waiver of collateral attack of a conviction is enforceable if voluntarily and knowingly made. United States v. Abarca , 985 F.2d 1012, 1014 (9th Cir. 1993) United States v. Pruitt , 32 F.3d 431, 433 (9th Cir. 1994). However, a defendant's waiver of collateral attack likely does not bar claims that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. Lampert , 422 F.3d 864, 871 (9th Cir. 2005) (holding that "a plea agreement that waives the right to file a federal habeas petition under 28 U.S.C. § 2254 is unenforceable with respect to an ...