United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 225 (Document #2255)
ANTHONY W. ISHII, Senior District Judge.
This matter arises from the criminal conviction of Defendant/Petitioner JASDEV SINGH ("Petitioner"). Petitioner is currently incarcerated at the Adams County Correctional Complex ("ACCC") and is proceeding in this matter in propria persona. Petitioner brings a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255. For the following reasons, Petitioner's motion is DENIED without an evidentiary hearing.
In 2008, Petitioner and others were indicted for their apparent involvement in an international drug trafficking operation. Doc. 56; see Doc. 1. Petitioner is an alien lawfully present in the United States. Doc. 478 at 7:22-23. Petitioner was charged under a Third Superseding Indictment as follows: Count 1 - Conspiracy to Distribute and to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(A), and 846; Count 2 - Attempted Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(A), and 846; and a Criminal Forfeiture Allegation pursuant to 21 U.S.C. Section 853 for the forfeiture of U.S. currency involved or intended to be involved in the other charged violations. Doc. 56.
Petitioner entered into a plea agreement wherein he agreed to plead guilty to Count 1 and admit to the forfeiture. Doc. 139 at 3:3-18. In return, the government agreed to dismiss Count 2. Doc. 5:12-16. On June 5, 2009, Petitioner entered a plea of guilty to Count 1 (a felony) and admitted to the forfeiture. Doc. 140; Doc. 356 at 21:16-19, 21:25-22:7. The Court engaged in a colloquy with Petitioner prior to accepting his guilty plea to establish that he understood the contents of the plea agreement and that his plea of guilty was both knowing and voluntary. Doc. 356 at 5:20-21:15. Petitioner's plea was accepted by the Court. Doc. 356 at 22:18-20.
Petitioner filed a motion to dismiss on July 23, 2010. Doc. 372. The present motion describes the grounds for Petitioner's motion to dismiss as the denial of "[Petitioner's] Sixth Amendment right to counsel and due process of law based upon facts which were discovered (subsequent to the entry of the plea)." Doc. 477 at 4. The motion to dismiss was subsequently withdrawn. Doc. 468 at 5:13-18.
Defense counsel submitted a Sentencing Memorandum, apparently after "settlement discussions" with the government, which outlined the following: defense counsel would withdraw the motion to dismiss, defense counsel would request a sentence of 80 months imprisonment without objection by the government, the government would request a prison term of 87 months, and the government would join defense counsel's request that the Court recommend Petitioner participate in a five hundred (500) hour drug treatment program. Doc. 445.
Petitioner was sentenced on July 11, 2011, to a term of 84 months incarceration followed by 60 months supervised release. Doc. 446, 447 at 2-3. Petitioner was ordered to pay a fine of $2, 000 and a special assessment of $100. Doc. 447 at 5. The Court recommended incarceration at the facility in Lompoc, California, and participation in a Residential Drug Abuse Treatment Program ("RDAP"). Doc. 447 at 2.
Petitioner was incarcerated at ACCC, a "low security" level facility in Mississippi. Doc. 477 at 7-8. BOP apparently categorized Petitioner with a Public Safety Factor ("PSF") for Deportable Aliens. An immigration detainer was issued by U.S. Immigration and Customs Enforcement ("ICE") on December 7, 2011. Doc. 477 at 7.
Petitioner claims that he and defense counsel attempted to "mitigate" his PSF designation and incarceration at ACCC by writing letters to BOP and ICE. Doc. 477 at 7-9. Copies of those letters were attached to Petitioner's motion as exhibits.
Prior to filing this motion, Petitioner filed a complaint against the Department of Homeland Security ("DHS") that asserts claims pursuant to the Privacy Act and seeks to amend his PSF classification. Doc. 1 (1:12-cv-00498-AWI-SKO); see also Doc. 38 (1:12-cv-00498-AWI-SKO) (First Amended Complaint). The factual allegations in that complaint largely track the allegations made in support of the present motion.
This motion brought pursuant to 28 U.S.C. Section 2255 was filed October 2, 2012. Doc. 477. It has been fully briefed by Petitioner and the government. See Doc. 477; see Docs. 482-484; see Doc. 493.
III. LEGAL STANDARD
Section 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio , 442 U.S. 178, 185 (1979). Courts must "construe pro se habeas filing liberally." Laws v. Lamarque , 351 F.3d 919, 924 (9th Cir. 2003). Under Section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, [u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock , 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen , 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotations omitted). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. McMullen , 98 F.3d at 1159. Mere conclusory statements in a Section 2255 motion are insufficient to require a hearing. United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir. 1980).
Petitioner asserts in his motion that he was denied due process and effective assistance of counsel. Doc. 477 at 3. Specifically, Petitioner maintains that his Fifth and Sixth Amendment rights were violated "when the Government... breached the plea agreement when it affirmatively agreed with the [BOP], to categorize [Petitioner] with a [PSF] for Deportable Aliens, because this position was fundamentally inconsistent with the Government's assurances that in exchange for pleading guilty, [Petitioner] would be deemed non-deportable." Doc. 477 at 3 (footnote omitted). Petitioner claims that during the course of the criminal proceedings it was represented to him that he would not be subject to deportation. Doc. 477 at 3, 5-6.
Petitioner contends that "his non-deportable status" "was of particular concern to enter a plea of guilty and withdraw his meritorious Motion to ...