United States District Court, S.D. California
ORDER DENYING 28 U.S.C. §2255 HABEAS PETITION AND DENYING PENDING MOTIONS AS MOOT
LARRY ALAN BURNS, District Judge.
On July 20, 2011, pursuant to a plea agreement, Rodriguez-Preciado pled guilty to importation of cocaine and methamphetamine. On December 16, 2011, he was sentenced to 135 months in custody, followed by five years of supervised release and a $100 assessment. (Docket no. 33.) On December 19, 2011, Rodriguez-Preciado filed a habeas corpus petition to modify his sentence on the ground that his ineligibility for a two-point sentence reduction through a drug program based on his alien status was a violation of his Fifth and Fourteenth Amendment rights based on his alien status. (Docket no. 34.) The Court concluded that his ineligibility was not a violation of his due process or equal protection rights and denied his petition.
On May 27, 2014, Rodriguez-Preciado submitted a new §2255 petition, alleging that his counsel was ineffective for failure to file a notice of appeal. See 28 U.S.C. §2255. (Docket no. 40.) He also requested this Court grant him retroactive leave to appeal, or extend the time in which he could file a notice of appeal. (Docket nos. 37, 38.)
I. IFP Motion
Along with his §2255 petition, Rodriguez-Preciado filed a motion to proceed in forma pauperis. No filing fee is required for his habeas petition. See Rule 3, Rules Governing §2255 Proceedings, Advisory Comm. Notes (1976) ("There is no filing fee required of a movant under these rules.") See also United States v. Thomas, 713 F.3d 165, 173 (3d Cir. 2013). The motion is therefore DENIED AS MOOT.
II. The Statute of Limitations
Pursuant to 28 U.S.C. §2255(f), there is a one-year statute of limitations period on filing habeas petitions. Unless any exception applies, the statutory period begins to run when the judgement becomes final. See 28 U.S.C. §2255(f)(1). A judgement of conviction becomes final on the date when the time to file an appeal expires. See United States v. Buckles, 674 F.3d 883, 889 (9th Cir. 2011); United States v. Schwartz, 274 F.3d 1220, 1221 (9th Cir. 2001). Rodriguez-Preciado's conviction became final fourteen days after the entry of judgement, on December 30, 2011. See Fed. R. App. P. 4(b)(1)(A). He filed his §2255 petition on May 27, 2014, more than two years following finality of the judgement. The Petitioner does not claim that any of the three exceptions to the rule apply. See 28 U.S.C. §2255(f)(1).
The limitations period might be tolled for statutory or equitable reasons. The limitation period between two habeas petitions filed in the same court will only be tolled by statute when the second petition is limited to an elaboration of the facts relating to the claims in the first petition. See Stancle v. Clay, 692 F.3d 948, 951 (9th Cir. 2012). As to equitable tolling, Petitioner has to show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." See Holland v. Florinda, 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); accord Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Such extraordinary circumstances include, for example, deprivation of access to legal resources, see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009), or egregious attorney misconduct, see Holland, 130 S.Ct. at 2563. Here, Rodriguez-Preciado does not identify any grounds for tolling. He does not limit his second petition to an elaboration of facts or identify any circumstances beyond his control preventing him from filing on time. The petition is therefore time-barred and for that reason it must be DENIED.
III. Waiver of Collateral Review
Rodriguez-Preciado entered a knowing and voluntary guilty plea and waived his right to appeal or collaterally attack his sentence. A defendant validly waives his right to appeal or collaterally attack a sentence if the language of the waiver encompasses his right to appeal on the grounds raised and he knowingly and voluntarily agrees to waive those rights. See United States v. Rahman, 642, F.3d 1257, 1259 (9th Cir. 2011). However, a waiver cannot bar a claim that relates to the validity of the waiver itself, such as ineffective assistance of counsel. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).
The Ninth Circuit has upheld the enforceability of waivers, reasoning that the right to bring a collateral attack is derived by statue, and "[a] knowing and voluntary waiver of a statutory right is enforceable." See United States v. Abarca, 958 F.2d 1012, 1014 (9th Cir. 1993). Petitioner's plea agreement explicitly waived the right to collaterally attack his sentence unless the Court imposed a custodial sentence above the high end of the guideline range recommended by the United States. (Docket no. 15 at 11: 6-9.) At sentencing, the United States recommended a range of 168 to 210 months in custody, and the Court sentenced Rodriguez-Preciado below this range. Therefore, pursuant to the plea agreement, Petitioner validly waived all grounds for collateral review except ineffective assistance of counsel for the plea.
A. Ineffective Assistance of Counsel
Rodriguez-Preciado's petition seeks relief on the grounds that his counsel was ineffective for failing to file a requested notice of appeal. Petitioner identified only one matter that should have been appealed: a "two point enhancement" sentencing issue. (Docket no. 40.) But Petitioner's pre-sentence report shows that there was no two-point enhancement at sentencing. (Docket no. 23.) Although the petition gives no further details, the Court believes that Petitioner is referring to the two-point sentence reduction for which he is ineligible under the Residential Drug Abuse Program ("RDAP"). This is precisely the issue Petitioner raised in his first habeas petition, which the Court rejected on the merits. (Docket no. 35.)
To state a claim for ineffective assistance of counsel, Rodriguez-Preciado would have to first show that (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must demonstrate that counsel's representation fell below an "objective standard of reasonableness" and that, but for counsel's ...