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.33]
ROGER T. BENITEZ, District Judge.
Petitioner Pedro De La Torre-Delgadillo has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Docket No. 33). For the reasons stated below, the Motion is DENIED.
Petitioner was arrested on July 14, 2013, and was later charged by information with a violation of 8 U.S.C. § 1326, Attempted Entry After Deportation. (Docket Nos. 1, 9). On September 17, 2013, Petitioner pled guilty to the sole count pursuant to a Plea Agreement with the United States. (Docket Nos. 13, 15). This Court accepted his plea on October 2, 2013. (Docket No. 18). On February 18, 2014, this Court sentenced Petitioner to 24 months imprisonment and two years supervised release. (Docket Nos. 28, 29).
Petitioner filed the instant Motion on May 15, 2014. The United States filed an Opposition on July 24, 2014. (Docket No. 42). Petitioner did not file a traverse.
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). 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. Legal Standard for Ineffective Assistance of Counsel
All of Petitioner's claims before this Court pertain to allegations of ineffective assistance of counsel.
A petitioner asserting an ineffective assistance of counsel claim must demonstrate that: (1) defense counsel's performance was deficient; and (2) this deficient performance prejudiced the petitioner's defense. Strickland v. Washington, 466 U.S. 668, 690-92 (1994). To establish performance is deficient, Petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Id. at 687-88. Due to the difficulties inherent in evaluating the performance of counsel after the fact, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. To demonstrate prejudice, a defendant must show that there is a "reasonable probability" that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
B. Ground One: Failure to Advise of Constitutional Rights
Petitioner claims that his attorney did not advise him of the "Boykin trial rights guaranteed to him by the Fifth and Sixth amendments, " and that this resulted in an "unknowing and involuntary guilty plea, in violation of the due process clause of the Fifth Amendment." (Mot. at 5). He contends that he should have been advised "pursuant to Rule 11 of the Federal Rules of Criminal Procedure, " and asks that this Court vacate the sentence to allow the Petitioner, "if he so chooses to enter a knowing, intelligent and voluntary guilty plea...." ( Id. )
A review of the record shows that Petitioner's argument is without merit. First, the Plea Agreement, signed by Petitioner, confirms that Petitioner fully discussed the nature of the charge and the plea with his counsel. (Docket No. 15, Plea Agreement at 3, 5). Petitioner explicitly waived his Fifth and Sixth Amendment rights, as stated in the Plea Agreement. ( ...