United States District Court, C.D. California
CIVIL MINUTES - GENERAL
DAVID O. CARTER, District Judge.
PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
On March 12, 2012, Manuel Valadez Gonzalez pleaded guilty to one count of violating 8 U.S.C. § 1326(a), (b)(2), Illegal Alien Found in the United States Following Deportation or Removal. See Judgment (11-269 Dkt. 35). On or about July 8, 1997, Petitioner pleaded guilty to Possession of Narcotics for Sale in violation of California Health and Safety Code § 11351. See Opp'n Ex. B at 4. As a result, Petitioner was removed to Mexico on May 29, 1998. See Opp'n Ex. C at 1.
Petitioner was removed from the United States again on January 6, 1999, May 19, 2000, and July 17, 2005. On September 29, 2011, the United States Attorney filed a criminal complaint against Petitioner with the instant charge under 8 U.S.C. § 1326. Petitioner pleaded guilty to the charge on December 21, 2011. The Presentence Report calculated an offense level of 17 and a criminal history category of IV. The Court sentenced Petitioner to thirty-seven months imprisonment on March 12, 2012. See Judgment.
Petitioner filed this motion on March 11, 2013. Petitioner makes the following arguments: 1) he received ineffective assistance of counsel because his attorney failed to collaterally attack his underlying removal order; 2) he received ineffective assistance of counsel because his attorney failed to object to the 16-level sentencing enhancement for a conviction for an "illicit trafficking offense."
II. Legal Standard
Section 2255 permits federal prisoners to file motions to vacate, set aside, or correct a 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. Where the petitioner does not allege lack of jurisdiction or constitutional error, relief under § 2255 is inappropriate unless the alleged error resulted in a "complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States , 67 F.3d 761, 763-64 (9th Cir. 1995). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady , 456 U.S. 152, 165 (1982); United States v. Addonizio , 442 U.S. 178, 184 (1979). Petitioner requests relief under 28 U.S.C. §2255 based on a claim of ineffective assistance of counsel in violation of the Sixth Amendment.
There is a two prong test to challenge guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart , 474 U.S. 52, 57-60 (1985). First, "[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id . at 57 (quoting Strickland v. Washington , 466 U.S. 668, 687-688 (1984)) (commonly referenced as the "performance requirement"). Second, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial..." Hill , 474 U.S. at 59. This second prong is commonly referenced as the "prejudice requirement." Judicial scrutiny of counsel's performance is "highly deferential." Strickland , 466 U.S. at 689. Consequently, there is a presumption that "counsel's conduct falls within the wide range of reasonable professional assistance [and] that... under the circumstances, the challenged action might be considered sound trial strategy.'" Id .
a. Failure to Collaterally Attack Removal Order
Petitioner argues that had his counsel collaterally attacked the underlying removal order, the Court may have found the removal order invalid and dismissed the indictment. Petitioner presents two possible grounds for finding the removal order invalid: 1) he was not, in fact, convicted of an aggravated felony; and 2) his due process rights were violated because the IJ may not have advised him of voluntary departure, cancellation of removal, or judicial review.
"In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998). A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). To sustain a collateral attack under § 1326(d), a defendant must, within constitutional limitations, demonstrate (1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). An underlying removal order is "fundamentally unfair" if: "(1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. Ubaldo-Figueroa , 364 F.3d 1042, 1047-48 (9th Cir. 2004) (internal citation and quotation marks omitted).
The criminal complaint lists all four of Petitioner's prior removals and states that "at least one" occurred after an aggravated felony (the § 11351 conviction). It is thus not clear which deportation hearing Petitioner alleges violated his due process rights. Petitioner's 1998 "Warning to Alien Ordered Removed" reads: "you are prohibited from entering, attempting to enter, or being in the United States... At any time because you have been found inadmissible or excludable under section 212 of the Act, or deportable under section 241 or 237 of the Act, and ordered deported or removed from the United States, and you have been convicted of a crime designated as an aggravated felony." See Opp'n Ex. C. The 1999 and 2001 removals were both pursuant to reinstatements of the 1998 order. See Opp'n Ex. D, E. It appears the 2005 removal was based solely on ...