United States District Court, S.D. California
ORDER DENYING DEFENDANT’S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
2255 [ECF NO. 93]
Cynthia Bashant, United States District Judge
before the Court is Defendant Francisco Mojica’s motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. Defendant, who is proceeding pro
se, was sentenced after entering into a plea agreement.
He challenges his sentence on two grounds: (1) his guilty
plea was not knowing and voluntary; and (2) he was denied
effective assistance of counsel. The Government opposes the
motion, supporting its opposition with a copy of the plea
agreement, and transcripts from the change-of-plea and
following reasons, the Court DENIES Defendant’s motion.
was charged with conspiracy to distribute cocaine in
violation of 21 U.S.C. §§ 846 and 841(a)(1). The
cocaine amounted to approximately 18.55 kilograms. (Plea
Agreement § II.B.) Defendant’s involvement in the
offense was assisting his co-defendant in the delivery of the
cocaine to a location 2 miles north of the Camp Pendleton
military facility. (Id.)
October 2014, he signed a plea agreement in which he admitted
there is a factual basis for his guilty plea. (Plea Agreement
§ II.B.) On November 3, 2014, the Court held the
change-of-plea hearing where Defendant pled guilty. (ECF No.
48.) The plea agreement was filed on the same day. (ECF No.
April 6, 2015, the Court held the sentencing hearing where
Defendant was committed to the Federal Bureau of Prisons for
a term of 48 months followed by supervised release for 3
years. (ECF No. 80.) Though Defendant was not fined, a $100
special assessment was imposed. (Id.)
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). Pursuant to Rule 4(b) of the Rules Governing
Section 2255 Proceedings “[t]he judge who receives the
motion must promptly examine it[, ]” and “[i]f it
plainly appears from the motion, any attached exhibits, and
the records from the prior proceedings that the [defendant]
is not entitled to relief the judge must dismiss the action
and direct the clerk to notify the moving party.” To
warrant relief, the defendant must demonstrate the existence
of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993); see also
United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.
2003) (“We hold now that Brecht ’s
harmless error standard applies to habeas cases under section
2255, just as it does to those under section 2254.”)
Relief is warranted only where a defendant has shown “a
fundamental defect which inherently results in a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 346 (1974); see also United
States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).
Validity of Plea Agreement
guilty plea is constitutionally valid only to the extent it
is ‘voluntary’ and
‘intelligent.’” Bousley v. United
States, 523 U.S. 614, 618 (1998) (citing Brady v.
United States, 397 U.S. 742, 748 (1970)).
is voluntary if it “represents a voluntary and
intelligent choice among the alternative courses of action
open to the defendant.” North Carolina v.
Alford, 400 U.S. 25, 31 (1970); Hill v.
Lockhart, 474 U.S. 52, 56 (1985). “[A] plea of
guilty entered by one fully aware of the direct consequences
. . . must stand unless induced by threats (or promises to
discontinue improper harassment), misrepresentation
(including unfulfilled or unfulfillable promises), or perhaps
by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business (e.g.
bribes).” Brady, 397 U.S. at 755. “[A]
guilty plea is void if it was ‘induced by promises or
threats which deprive it of the character of a voluntary
act.’” Sanchez v. United States, 50 F.3d
1448, 1454 (9th Cir. 1995) (quoting Machibroda v. United
States, 368 U.S. 487, 493 (1962)).
examine the totality of the circumstances to determine
voluntariness. United States v. Kaczynski, 239 F.3d
1108, 1114 (9th Cir. 2001). In determining whether a
defendant’s guilty plea satisfies the due-process
requirement for voluntariness, the Ninth Circuit focuses on
the “thoroughness” of the Rule 11 hearing.
United States v. Cook, 487 F.2d 963, 965 (9th Cir.
1973). Statements made by a criminal defendant
contemporaneous with the plea are afforded great weight in
assessing the voluntariness of ...