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Rodriguez-Rodriguez v. United States

United States District Court, S.D. California

February 23, 2018

GABRIEL RODRIGUEZ-RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [DOC. 29]

          Thomas J. Whelan, United States District Judge

         Petitioner Gabriel Rodriguez-Rodriguez, a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to Title 28, United States Code, Section 2255 (the “Petition”). (See Petition [Doc. 29].) Respondent United States of America opposes. (See Opp'n [Doc. 39].)

         The Court decides the matter on the papers submitted and without oral argument. See Civ. L. Rule 7.1(d)(1). For the reasons discussed below, the Court DENIES Petitioner's Petition. [Doc. 29.]

          I. Background

         On or about January 30, 2016, United States Border Patrol agents arrested Petitioner, an alien previously removed from the United States, for re-entering the United States in violation of 18 U.S.C. § 1326. On February 25, 2016, Petitioner agreed to waive indictment to an information charging him with being a removed alien found in the United States in violation of 18 U.S.C § 1326(a) and (b). (See Complaint [Doc. 1]; Waiver of Indictment [Doc. 9].)

         On March 28, 2016, Petitioner plead guilty pursuant to a plea agreement for being a removed alien found in the United States in violation of 18 U.S.C. § 1326. (See Plea Agreement [Doc. 14].[1]) As part of the plea agreement, Petitioner agreed to waive his right to appeal. (See Id. at ¶ XI.) On July 5, 2016, this Court sentenced Petitioner to 37 months in custody followed by two years of supervised release. (See Judgment [Doc. 22].)

         Petitioner appealed the sentence on October 12, 2016, contending that his trial counsel failed to object to certain factors used to determine his sentence, and failed to file a notice of appeal pursuant to his request. (See Notice of Appeal [Doc. 23].) The Ninth Circuit dismissed the appeal as untimely. (See 1/11/17 Order of USCA [Doc. 27].)

         On March 14, 2017, Petitioner filed the Petition alleging ineffective assistance of counsel. On June 6, 2017, Respondent filed a motion for a limited waiver of the attorney-client privilege for the purpose of responding to the Petition. (See Mot. [Doc. 36].) On June 9, 2017, the Court granted Respondent's motion as it found Petitioner waived the attorney-client privilege with respect to claims asserted in the Petition, ordered Petitioner's trial counsel to provide a declaration addressing the claims, and issued a new briefing schedule on the Petition. (See Waiver Order [Doc. 37].)

         On September 22, 2017, Respondent filed its opposition, including Petitioner's trial counsel's declaration as an exhibit. On October 16, 2017, Petitioner filed his reply.

         II. Legal Standard

         Under 28 U.S.C. § 2255, a federal sentencing court is authorized to discharge or re-sentence a defendant if it concludes 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. This statute is intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. See United States v. Addonizio, 442 U.S. 178, 185 (1979); Hernandez v. Campbell, 204 F.3d 861, 864 n.4 (9th Cir. 1999).

         The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979). But this remedy does not encompass all claimed errors in conviction and sentencing. Id. at 187. A mere error of law does not provide a basis for collateral attack unless the claimed error “resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure.” Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995) (quoting United States v. Timmreck, 441 U.S. 780, 783-84 (1979)).

         III. Discussion

         A. The ...


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