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 [Civil Docket No. 1/Criminal Docket No. 423]
ROGER T. BENITEZ, District Judge.
Petitioner Victor Carlos Quezada moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 78 months. (Docket. No. 423 at 1). The Government filed a Response on March 20, 2014. (Docket No. 483). Petitioner did not file a traverse. Because Petitioner validly waived his right to collateral attack and Petitioner's ineffective assistance of counsel claims lack merit, the Motion is DENIED.
Petitioner is a citizen of Mexico. In August 2010, Petitioner and others conspired to conduct a robbery of a "stash house, " which was protected by two armed guards. (Plea Ag., Gov. Ex. D ¶ II(B)(2)). On August 25, 2010, the co-conspirators drove in five separate vehicles to a vacant building where they discussed how the robbery was to be conducted. ( Id. ¶ II(B)(3), (4)). Petitioner was arrested that day. Two loaded firearms were seized from one of the vehicles. ( Id. ¶ II(B)(3); Plea Hr'g Tr., Gov Ex. C at 22:12-14). On April 6, 2011, a five-count superseding indictment was filed in the Southern District of California variously charging the co-conspirators. (Docket No. 113). Petitioner was charged in Count One with violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, Conspiracy to Possess with Intent to Distribute Cocaine; in Count Two with violation of 18 U.S.C. § 1951(a), Conspiracy to Affect Commerce by Robbery and Extortion; and in Count Three with violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2, Possession of a Firearm in Furtherance of a Crime of Violence or a Drug Trafficking Offense. ( Id. )
On December 9, 2011, the Court granted an oral request by Petitioner for appointment of new counsel, relieving Michael J. Messina and appointing Lupe C. Rodriguez. (Docket. No. 306). Ten days later, on December 19, 2011, on this Court's own motion, Lupe C. Rodriguez was relieved and Victor Manuel Torres was appointed. (Docket. No. 324).
On April 23, 2012, Petitioner, represented by Victor Manuel Torres, signed a plea agreement with the United States. (Plea Ag. at 17). The same day, Petitioner pleaded guilty pursuant to the Plea Agreement to Count 2, Conspiracy to Affect Commerce by Robbery and Extortion, and Count 3, Possession of a Firearm in the Furtherance of a Crime of Violence or a Drug Trafficking Offense. (Plea Hr'g Tr. at 18:17-20:25). Petitioner was sentenced to 78 months imprisonment by this Court on September 4, 2012. (Docket Nos. 413, 414). Petitioner did not raise any issues before the Court regarding the voluntariness of his plea or the effectiveness of counsel. Petitioner filed this § 2255 motion to vacate, set aside or correct his sentence on March 22, 2013. (Docket No. 423).
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).
Review of the record in this matter reveals that Petitioner's claims are barred by his valid waiver of his collateral attack rights, except for his claims of ineffective assistance of counsel. Petitioner's contention that his appointed counsel failed to provide effective assistance fails on the merits.
A. Waiver of Right to Collateral Attack
As part of the Plea Agreement, Petitioner agreed to waive his right to collaterally attack his sentence. (Plea Ag. ¶ XI). The Ninth Circuit has upheld the validity of waivers of the right to collateral attack a sentence pursuant to § 2255. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993). Waivers in plea bargaining are "an important component of this country's criminal justice system." United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (citation omitted) (in the context of a waiver of right to appeal). The Ninth Circuit has held that public policy strongly supports plea agreements. Id. Plea bargaining saves the state time and money, allowing it to promptly impose punishment without expending resources. Id. at 322 (citing Town of Newton v. Rumery, 480 U.S. 386, 393 n.3 (1987)). Additionally, and "perhaps the most important benefit of plea bargaining, is the finality that results." Id. at 322.
The right of collateral attack in a criminal case is purely statutory. Abarca, 985 F.2d at 1014. A waiver of the right to collateral attack will be upheld where it was "knowing and voluntary." Id. A knowing and voluntary waiver is enforceable where the language of the waiver encompasses the grounds raised. See Patterson-Romo v. United States, No. 10-cr-3319, No. 12-cv-1343, 2012 WL 2060872, at *1 (S.D. Cal. June 7, 2012); see also United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (citation omitted) (discussing the right to appeal).
1. Knowing and Voluntary
The waiver of a statutory right to challenge a conviction or sentence is knowing and voluntary if the plea agreement as a whole was knowing and voluntary. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005) (discussing the right to appeal) (overruled on other grounds); United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) ("waivers of appeal must stand or fall with the agreement of which they are a part") (internal quotations and citations omitted). A waiver will be considered knowing and voluntary where the plea colloquy satisfies Rule 11, and the record reveals no misrepresentation or gross mischaracterization by counsel that tainted the plea. See Jeronimo, 398 F.3d at 1154-55, 1157 n.5 (discussing right to appeal); Portillo-Cano, 192 F.3d at 1250. After a careful review of the written plea agreement, the Rule 11 plea colloquy, and the entire record in this matter, this Court finds that the plea and the waiver were knowing and voluntary.
a. The Plea Agreement
The Plea Agreement conferred significant benefits on Petitioner. Although he could have potentially faced a potential maximum sentence of life imprisonment for his offenses, the Plea Agreement led the Government to dismiss Count 1 and recommend a sentence of only 87 months. (Plea Ag. ¶¶ I, X; Plea Hr'g Tr. at 12:4-5; Sent. Hr'g Tr., Gov. Ex. E at 2:14-19, 18:11-23).
In the Plea Agreement, Petitioner admitted the factual basis for his guilty plea, (Plea Ag. ¶ II(B)), and stated that he understood the possible penalties for each count, ( id. ¶ III). The Plea Agreement contained a waiver of trial rights, ( id. ¶ IV), and a waiver of the pretrial right to be provided with impeachment and affirmative defense information. ( Id. ¶ V). Petitioner also agreed to a paragraph which stated:
By signing this agreement, defendant certifies that defendant has read it (or that it had been read to defendant in defendant's native language). Defendant has discussed the terms of this agreement with defense counsel and fully understands its meaning and effect.
( Id. ¶ XV). Petitioner signed and dated the Plea Agreement, and initialed each page.
By signing the Plea Agreement, Petitioner represented that he had "a full opportunity to discuss all the facts and circumstances of this case with defense counsel and has a clear understanding of the charges and the consequences of the plea, " that he did not receive a threat inducing his guilty plea, and that he was "pleading guilty because in truth and in fact defendant is guilty." ( Id. ¶ VI). Petitioner ...