United States District Court, S.D. California
ORDER DENYING PETITIONER'S MOTION TO VACATE 28 U.S.C. § 2255
JOHN A. HOUSTON, District Judge.
Petitioner, Gloria Bahena de Sotelo filed a petition pursuant to 28 U.S.C. § 2255 to vacate her guilty plea to alien smuggling in violation of 8 U.S.C. section 1324. Respondent filed an opposition and Petitioner filed a traverse. After a thorough review of the record and the parties' submissions, and for the reasons set forth below, this Court DENIES Petitioner's motion.
On December 7, 2011, Petitioner was arrested and charged with bringing in illegal aliens without presentation in violation of 8 U.S.C. section 1324. Petitioner signed a waiver of indictment and the United States Attorney filed an Information on January 5, 2012. Following her arraignment, Petitioner filed a motion for substitution of attorney and Patrick Aguirre was substituted in as her attorney.
On February 7, 2012, pursuant to a plea agreement, Petitioner pled guilty to the Information. Thereafter, on Petitioner's motion, the Court relieved Aguirre and substituted in David Shapiro as Petitioner's attorney.
On May 5, 2012, the Court vacated Petitioner's guilty plea. Petitioner pled guilty to the Information pursuant to an amended plea agreement, admitting that she knowingly, and in reckless disregard of the fact that an alien had not received prior official authorization to enter the United States, did bring the alien to the United States. In exchange for Petitioner's guilty plea, the Government agreed not to charge Petitioner with violating 8 U.S.C. section 1324(a)(2)(B)(ii), which carries a three year mandatory minimum and agreed to recommend Petitioner be sentenced to 13 months and a day in custody or the low end of the advisory guideline range. In the amended plea agreement, Petitioner agreed to waive appeal and collateral attack. This Court sentenced Petitioner to six months imprisonment followed by two years of supervised release.
Thereafter, Petitioner filed the instant motion seeking to vacate or set aside her sentence.
Petitioner moves to vacate her conviction on the ground she was denied effective assistance of counsel. Specifically, Petitioner contends her attorney, Mr. Aguirre, touched her in an inappropriate sexual way making her guilty plea with a different lawyer involuntary. She further contends Mr. Shapiro falsely told her the offense she was pleading guilty to would not make her deportable. She maintains she would have insisted on going to trial had she been properly advised.
I. Legal Standard
A section 2255 motion may be brought to vacate, set aside or correct a federal sentence on the following grounds: (1) the sentence "was imposed in violation of the Constitution or laws of the United States, " (2) "the court was without jurisdiction to impose such sentence, " (3) "the sentence was in excess of the maximum authorized by law, " or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
A. Ineffective Assistance ...