United States District Court, S.D. California
WILLIAM Q. HAYES, UNITED STATES DISTRICT JUDGE.
matter before the Court is Defendant's Motion pursuant to
28 U.S.C. § 2255. (ECF No. 863).
December 27, 2016, Defendant entered a plea of guilty to an
Information charging him with a single Count of Hobbs Act
Extortion in violation of 18 U.S.C. § 1951. The guilty
plea was entered pursuant to a written plea agreement between
the Defendant and the Plaintiff United States. (ECF No. 536).
The plea stated that “the crime to which defendant is
pleading carries the following penalties: A. a maximum of
twenty years in prison...” Id. at 4. Defendant
appeared before the Magistrate Judge and entered his plea.
The Magistrate Judge found the plea was knowing and
voluntary. This Court accepted the plea. (ECF No. 573).
February 7, 2017, the probation office prepared a presentence
report. The report concluded that the total offense level was
17 and the Criminal History Score was I, resulting in an
applicable sentencing guideline range of 24-30 months. (ECF
24, 2017, this Court held a sentencing hearing and entered a
judgment sentencing the Defendant to be imprisoned for a term
of 16 months in the custody of the Bureau of Prisons. (ECF
February 13, 2018, Petitioner, filed a motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 863). Petitioner alleged that he received
ineffective assistance of counsel on the grounds that (1) the
failure of his to advise him that working with the
prosecution in the pre-trial and plea bargaining phase caused
him prejudice, and 2) his counsel failed to secure a two
level reduction for safety valve. The Government opposes the
motion on the grounds that defense counsel's performance
was well within the bounds of prevailing norms and that
Defendant suffered no prejudice from any aspect of the
representation of his counsel.
U.S.C. §2255 provides that “A prisoner under
sentence of a court established by Act of Congress claiming
the right to be released 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, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
OF THE COURT
exchange for the Government's concessions in the plea
agreement, the Defendant waived “to the full extent of
the law, any right to appeal or to collaterally attack the
conviction and any lawful restitution order, except a
post-conviction collateral attack based on a claim of
ineffective assistance of counsel. The defendant also
knowingly and voluntarily waives, to the full extent of the
law, any right to appeal or to collaterally attack his
sentence, except a post-conviction collateral attack based on
a claim of ineffective assistance of counsel, unless the
Court imposes a custodial sentence above the total statutory
maximum for the offense of conviction.” (ECF No. 536 at
11). This waiver is clear, express and unequivocal. Plea
agreements are contractual in nature, and their plain
language will generally be enforced if the agreement is clear
and unambiguous on its face. United States v.
Jeronimo, 298 F.3d 1149, 1153 (9th Cir. 2005).
Court imposed a sentence of 16 months. This sentence was not
“above the total statutory maximum for the offense of
conviction” of twenty years. (ECF No. 536 at 11).
Pursuant to the terms of the plea agreement, the Defendant
waived his right to collaterally attack the sentence imposed
“except a post-conviction collateral attack based on a
claim of ineffective assistance of counsel.”
assistance of Counsel
order to prevail on a claim of ineffective assistance of
counsel, Petitioner must show that representation of counsel
fell below an objective standard of reasonableness, and that
any deficiencies in counsel's performance were
prejudicial. See Strickland v. Washington, 466 U.S.
688, 690 (1984). Both deficient performance and prejudice are
required before it can be said that a conviction or sentence
resulted from a breakdown in the adversary process that
rendered the result of the proceeding unreliable and thus in
violation of the Sixth Amendment. See United States v.
Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005). To prevail
on the prejudice prong of a claim of ineffective assistance
of counsel, the defendant must show that there is “a
reasonable probability that, but for ...