United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that counsel was ineffective for failing to determine whether his prior convictions were invalid, neglecting to advise him of his right to have Mexican consular officials notified of his arrest, failing to advise him properly concerning the waiver of appeal, and neglecting to file a notice of appeal. ECF No. 25 at 4-5.
The government has filed a motion to dismiss the first three claims and a renewed request for discovery as to the fourth claim. Movant has not opposed the motion. As discussed below, the court denies movant's motion and denies the government's motion to dismiss as moot.
On April 21, 2011, movant pled guilty to a single count of being a deported alien found in the United States, 8 U.S.C. § 1326(a), (b)(2), and was sentenced that day. ECF No. 19. The plea agreement provided in part that "[t]he defendant understands that the law gives him a right to appeal his conviction and sentence. He agrees as part of his plea, however, to freely, knowingly, and voluntarily give up the right to appeal any aspect of his conviction or sentence. The defendant also gives up any right he may have to bring a post-conviction attack on any aspect of his conviction or sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking any aspect of his conviction or sentence." Plea Agreement, ECF No. 20 ¶ 5.
Movant was sentenced on the day of his guilty plea to a term of fifty-seven months' imprisonment. Hrg. Tr., ECF No. 31 at 27. He filed his motion to vacate just over a year later, on May 2, 2012. ECF No. 25.
On June 21, 2012, movant filed a motion for appointment of counsel and for an evidentiary hearing. He also asked for a stay of these proceeding to allow appointed counsel to file a petition for coram nobis in the state court, attacking various state convictions because of the state courts' alleged failure to advise him of the immigration consequences of his pleas. ECF No. 33. On July 26, 2012, the court denied this motion. ECF No. 39.
On August 3, 2012, the government filed a motion for an order finding a waiver of the attorney client privilege and permitting it to depose movant's trial counsel, among other things. ECF No. 41. Movant did not oppose the motion, which the court denied without prejudice on November 2, 2012. ECF No. 45.
The government filed the current motion on January 4, 2013. It argues movant's first two claims are attacks on the sentence imposed, are barred by the waiver of collateral attack in the plea agreement, and also fail on the merits. It also argues the third claim is contradicted by the record and the fourth claim cannot be resolved without discovery.
Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a sentence "upon 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(a).
A. Review of Claims
In his first ground for relief, movant claims counsel failed to tell him his current sentence could be invalid because his prior convictions and deportations might be infirm as a result of prior counsel's failure to inform him he would be subject to deportation. He claims that counsel not only failed to so advise him, but also failed to investigate the validity of those prior convictions. Mot. to Vacate, ECF No. 25 at 4. In his second claim, movant says counsel failed to advise movant of his right to have the Mexican Consul notified of his arrest and as a result, he lost the additional assistance the Consulate could have provided in investigating his state court convictions; he also makes a somewhat puzzling claim that this failure somehow violated the Ninth Amendment. Id.
The government argues that these two claims are in essence a collateral attack on movant's sentence and thus are ...