United States District Court, E.D. California
a federal prisoner proceeding pro se, brings this motion to
vacate, set aside or correct a criminal judgment pursuant to
28 U.S.C. § 2255. This matter was referred to a United
States Magistrate Judge pursuant to Eastern District of
California local rules.
March 7, 2017, the magistrate judge filed findings and
recommendations, which were served on the parties and which
contained notice that the parties may file objections within
a specified time. No objections to the findings and
recommendations have been filed.
court presumes that any findings of fact are correct. See
Orand v. United States, 602 F.2d 207, 208 (9th Cir.
1979). The magistrate judge's conclusions of law are
reviewed de novo. See Britt v. Simi Valley Unified School
Dist., 708 F.2d 452, 454 (9th Cir. 1983).
raises two claims in his § 2255 motion. First, he claims
that counsel was ineffective for not filing a direct
appeal. The magistrate judge's findings and
recommendations with respect to that claim are adopted in
full. See ECF No. 176 at 4-7.
second claim is that his plea of guilty to Count 3 of the
indictment, charging him with use of a firearm in furtherance
of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1) was not knowing and voluntary due to ineffective
assistance of counsel (IAC). ECF No. 142 at 5. Specifically,
movant contends defense counsel “assured [him] that if
he plead [sic] guilty . . . he would only face a mandatory
minimum of five (5) years with no maximum penalty” and
that movant did not know that by entering this guilty plea he
would “also be pleading guilty to a sentencing
enhancement of seven (7) years for brandishing a firearm,
which brandishing is not an element of §
924(c)(1).” Id. (emphasis in original). The
magistrate judge interprets this claim as a challenge to the
voluntariness of the guilty plea and recommends it be
dismissed on the ground that in the plea agreement movant
waived the right to collaterally attack his conviction or
sentence. ECF No. 142 at 2-3.
second claim is in fact an ineffective assistance of counsel
claim that goes to the validity of his guilty plea to Count 3
of the indictment. It is unlikely the waiver in his plea
agreement extends to this claim. See Washington v.
Lampert, 422 F.3d 864, 870-71 (9th Cir. 2005) (“We
note that a number of other circuits have explicitly held, in
the context of § 2255 challenges brought by federal
prisoners, that waivers cannot bar IAC claims associated with
the negotiation of plea agreements.”); see also
United States v. Torres, 828 F.3d 1113, 1125 (9th Cir.
2016) (“an appeal waiver does not deprive a defendant
of a constitutional ineffective assistance of counsel
claim.”). The substance of movant's claim, however,
is belied by the transcript of the plea hearing, during which
the court informed movant that the maximum sentence he faced
on Count 3 was life in prison and that Count 3 carried
“a seven year mandatory minimum sentence to be served
consecutive to the sentence imposed on Count One.” ECF
No. 149-3 at 10. Movant told the court he understood this.
Id. Movant's declaration in open court that he
understood the mandatory minimum sentence of seven years on
Count 3 is presumed truthful and the subsequent contrary
allegations in his § 2255 motion are not entitled to
weight in this proceeding. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977) (“Solemn
declarations in open court carry a strong presumption of
verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly
incredible”). For this reason, movant's second
claim will be denied.
a movant can appeal a decision from this court, a certificate
of appealability must issue under 28 U.S.C. § 2253(c).
See Fed. R. App. P 22(b); see also 28
U.S.C. § 2255. A certificate of appealability may issue
under 28 U.S.C. § 2253 “only if the applicant has
made a substantial showing of the denial of constitutional
right.” 28 U.S.C. § 2253(c)(2). The court must
either issue a certificate of appealability indicating which
issues satisfy the required showing or must state the reasons
why such a certificate should not issue. See Fed. R.
App. P. 22(b). For the reasons set forth in the magistrate
judge's findings and recommendations to the extent they
are adopted, and in this order, movant has not made a
substantial showing of the denial of a constitutional right.
IT IS HEREBY ORDERED that:
findings and recommendations filed March 7, 2017, are adopted
Movant's § 2255 motion (ECF No. 142) is denied;
court declines to issue a certificate of appealability; and
Clerk of the Court is directed to close companion civil case