United States District Court, S.D. California
ORDER (1) DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (2) DENYING CERTIFICATE OF APPEALABILITY
ROGER T. BENITEZ, District Judge.
Before this Court is a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Petitioner Ivan Urias. (Docket No. 30). Petitioner alleges that he received ineffective assistance of counsel (IAC) because his attorney failed to research whether Petitioner's prior conviction disqualified him for "safety valve" relief, and incorrectly advised him that he would qualify for it. (Mot. at 6). Petitioner claims that he would not have signed the plea agreement if he had known that he would not qualify. (Memorandum of Law in Support of Motion (Memo) at 8). Petitioner claims that this violated his Sixth Amendment rights, and rendered his plea invalid. ( Id. at 1).
For the reasons stated below, Petitioner's Motion is DENIED.
On February 18, 2010, a Complaint was filed alleging that Petitioner violated 21 U.S.C. §§ 952 and 960 by importing approximately 11.75 kilograms of cocaine into the United States. (Docket No. 1). Petitioner retained John Francis Kelly shortly thereafter, and claims he informed Kelly that he had been arrested for a "DUI" on May 1, 2006. (Memo at 3). Petitioner claims that Kelly told him not to worry, as the conviction was already three years old. ( Id. )
On March 3, 2010, the United States of America (Government) offered Petitioner a plea agreement. (Mot., Exh. A). Petitioner states that Kelly gave him a copy and went over the agreement carefully. (Memo at 4). The "Sentencing Guideline Calculations" section included an entry for "Safety Valve (if applicable)." (Plea Ag. at 7). The agreement stated that if the defendant truthfully disclosed all information and evidence concerning the offense and relevant conduct, and if defendant "otherwise qualifies" for the safety valve in § 5C1.2, that the government would recommend a two-level reduction and relief from any statutory mandatory minimum. ( Id. at 8). The agreement also stated "Defendant understands that if he does not qualify for § 5C1.2, defendant may be subject to a statutory mandatory minimum sentence." ( Id. ) The agreement contained a waiver of Petitioner's right to appeal and collaterally attack the conviction or the sentence. ( Id. at 10). Petitioner claims that Kelly told him that the agreement "basically only provided for a 37 month term of imprisonment because he qualified for all of the agreement's departures and because the Government had agreed to recommend the bottom of the recommended sentencing guideline range." (Memo at 4). Petitioner states that Kelly told him that he should accept the agreement, because it was the best he was going to get. ( Id. ) Petitioner signed the agreement on March 30, 2010. (Plea Ag.)
Petitioner states that another inmate told him that his prior conviction might disqualify him for the safety valve. ( Id. at 4-5). Petitioner claims he contacted Kelly and reminded him of the conviction. ( Id. at 5). He claims that Kelly said not to worry, and that Kelly would contact the attorney who handled his 2006 case. ( Id. ) Petitioner entered a plea of guilty to the sole count of the Information before Magistrate Judge Anthony J. Battaglia on April 1, 2010. (Docket Nos. 16, 17). After entering his plea, Petitioner states that he "kept asking" Kelly about the 2006 conviction. (Memo at 5). Petitioner claims that Kelly said that the prior attorney had retired, that Petitioner should not worry, and that Kelly would handle everything. ( Id. at 5-6).
Petitioner claims he spoke to another attorney, Phillip DeMassa, because Kelly had not addressed his concerns. ( Id. at 6). Petitioner states that DeMassa initially told him he had a good agreement and should not change lawyers. ( Id. ) Petitioner reports that DeMassa returned "one to two hours later" and told him that he was in trouble. ( Id. ) He told Petitioner that he did not qualify for the safety valve, and therefore would not receive all the benefits of the plea agreement, because he had committed the federal offense while on probation. ( Id. ) DeMassa informed Petitioner that he could help him. ( Id. at 7). Petitioner received confirmation of his status in late May or early June, when Petitioner saw the pre-sentence report (PSR), and Kelly told him that he would not qualify for the safety valve. ( Id. ) Kelly told Petitioner that he would explain the situation to the court and something would work out. ( Id. )
Petitioner substituted DeMassa as his counsel on June 12, 2010, and DeMassa represented him during his sentencing. ( Id. ) Although Petitioner does not allege that DeMassa was ineffective, he states that DeMassa apparently thought Petitioner would be willing to cooperate with the government. ( Id. at n.4). Petitioner states that when this did not occur, DeMassa "refused to do anything" for Petitioner. ( Id. )
On September 7, 2010, Petitioner was sentenced by this Court to 120 months of imprisonment, the mandatory minimum for his offense. (Docket Nos. 26, 27). Petitioner filed his Motion to Vacate, Set Aside, or Correct Sentence on July 6, 2011.
II. Legal Standard
A district court may "vacate, set aside or correct" the 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. Waiver of Right to ...