United States District Court, E.D. California
ORDER ON 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (DOC. 23)
LAWRENCE J. O'NEILL, District Judge.
Gilberto ESPARZA-Vera ("Defendant"), a prisoner in federal custody, brings a pro se 28 U.S.C. § 2255 motion ("§ 2255 motion") to vacate, set aside, or correct his sentence. For the reasons discussed below, the Court DENIES in part and GRANTS in part Defendant's motion.
The United States of America ("the Government") filed a criminal complaint against Defendant alleging that he had violated 8 U.S.C. §§ 1326(a) and (b)(2). Doc. 1. The complaint alleges that on or about October 31, 2013, Defendant was found in the County of Merced, California after having been previously deported on or about July 10, 2001 from the United States, without any indication that Defendant had received the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission to the country. Id. On November 1, 2013, Defendant appeared before Magistrate Judge Gary S. Austin for his initial appearance, at which point Defendant was appointed counsel. Doc. 3. At his initial appearance, the government provided Defendant with a fast track plea offer that expired on December 1, 2013, which, based on Defendant's criminal history, included a two level reduction pursuant to § 5K3.1 of the Sentencing Guidelines. Doc. 31 at 2-3. Defendant's case was assigned to Federal Defender Victor Chavez ("Chavez") on November 5, 2013. Doc. 6. On November 7, 2013, Defendant was indicted for violating 8 U.S.C. §§ 1326(a) and (b)(2). Doc. 7. The indictment alleged that Defendant's deportation was the result of having been convicted of Kidnapping for Ransom and Robbery with a gun in violation of California Penal Code section 209(a), (b) and 122022(a)(1) on February14, 2001 in the Superior Court of California, County of San Diego. Id. at 1.
Filed in conjunction with Defendant's arraignment was a Pre-Plea Advisory Guideline Presentence Investigation Report ("PSR") prepared by the United States Probation Office. Doc. 31 at 22. The PSR found Defendant had a dozen prior convictions, placing him in the highest criminal history category. Id. at 22-23. On November 15, 2013, an arraignment and plea hearing was held before Magistrate Judge Sheila K. Oberto. Doc. 10. At the hearing, Defendant pled not guilty and reciprocal discovery was requested and ordered. Id. Following the arraignment, Chavez initiated a discussion with the government, attempting to negotiate further downward departures on Defendant's PSR due to what appeared to be an overrepresentation of Defendant's criminal history. Doc. 31 at 5.
On November 26, 2013, Defendant signed a retainer agreement with private counsel, Peter Singh ("Singh"). Doc. 31-3. In a letter to the Better Business Bureau of Central California, Singh reported that he attempted to contact Chavez the day the retainer was signed but did not hear back from the Federal Defender's office until December 4, 2013. Doc. 31-3. In a declaration, Chavez stated that he was not contacted by anyone from Singh's office until Amy Birdsong ("Birdsong"), Singh's paralegal, contacted him on December 3, 2013 when she advised Chavez that Singh had been retained as private counsel and sent Chavez a substitution form. Doc. 31-8 at 2. On December 6, 2013, the Court was notified of a substitution of attorney and the Court authorized the substitution four days later. Doc. 14. The Assistant United States Attorney assigned to the case, Mia Giacomazzi, stated in her declaration that she was first contacted by Birdsong on December 17, 2013 and that throughout the case Birdsong was her primary contact. Doc. 31-1 at 2. By the time Singh's office contacted the Government, the fast track plea deal had expired. The government indicated that without good cause, the fast track offer would not be re-opened. Doc. 31 at 6. Singh's office accepted this and presented Defendant with a new settlement agreement which had a base offense level of 8 with an additional 16 points since Defendant had been deported after having been convicted of a crime of violence with a three point reduction for acceptance of responsibility, totaling 21 points, two points higher than the fast track offer. Id. at 7.
Defendant accepted this plea offer and pled guilty to a single count of the indictment on January 13, 2014. Doc. 18. Consistent with the plea agreement, Defendant was sentenced to 77 months incarceration. Id.
On October 22, 2014, Defendant filed a § 2255 motion to vacate, set aside, or correct his sentence. Doc. 23. Defendant alleges that both Chavez and Singh provided ineffective assistance of counsel. Id. Defendant alleges that Chavez failed to properly investigate Defendant's reported criminal history as reported in the PSR. Specifically, Defendant believes that Chavez should have attempted to dispute some of his convictions the records of the convictions from Merced County were destroyed. Id at 10. Defendant also alleges that Chavez did not attempt to remove the criminal history points added to Defendant's criminal history score due to convictions based on pleas of nolo contendere. Id at 5-6. Defendant alleges that Singh failed to object to his criminal history score on the grounds that his kidnapping offense was included in both his base offense level and his criminal history and the fact that he spent less than a year in prison for his prior felony charge. Additionally, Defendant alleges that Singh provided ineffective counsel by failing to preserve Defendant's fast track plea option. Id at 11 and 15.
On February 19, 2015, the government responded arguing that Chavez acted effectively as counsel as he thoroughly investigated Defendant's criminal history and there is no legal basis for excluding from Defendant's criminal history convictions resulting from pleas of nolo contendere. Doc. 31 at 9-13. The Government further argued that Singh acted as effective counsel when determining Defendant's criminal history score, but conceded it was unreasonable for Singh to delay his representation allowing the fast track offer to expire. Id. at 13-21. The Government agrees with Defendant that he suffered prejudice when Singh allowed Defendant's fast track offer to expire, as he lost the opportunity to have his criminal history score lowered by two points, which would have resulted in a sentencing recommendation of 63 month instead of 77 months. Id. at 21. The Government proposed that the Court either appoint Defendant counsel to conduct an evidentiary hearing, or, alternatively, resentence Defendant to 63 months, the amount of time offered in the original fast track plea agreement. Id. at 22. In his reply filed on March 12, 2015, Defendant states "the Defendant will not oppose a re-sentence of 63 months in this action if this Honorable Court sees it as a just and fair resolution to this matter." Doc. 35 at 1.
As both parties are in agreement that a fair and justice resolution of this § 2255 motion would result in Defendant's sentence being reduced to 63 months the Court will only briefly discuss Defendant's other arguments.
A. Legal Standard of Ineffective Assistance of Counsel
The law governing ineffective assistance of counsel claims is clearly established. Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir.1998.). In Strickland v. Washington, the Supreme Court held that there are two components to an ineffective assistance of counsel claim: "deficient performance" and "prejudice." 466 U.S. 668, 694 (1984). Establishing "deficient performance" requires the movant to show that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. "Deficient performance" means representation that "fell below an objective standard of reasonableness." Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir.2011) (citing Strickland, 466 U.S. at 688). "Where... a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). To demonstrate prejudice, the movant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "It is not enough to ...