United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE
JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE.
Jorge Morgas-Mendoza, proceeding pro se, filed a motion
challenging his conviction under 28 U.S.C. § 2255
(“section 2255”). Respondent filed a response.
After a thorough review of the record and the parties'
submissions, and for the reasons set forth below, this Court
DENIES Petitioner's motion.
March 22, 2016, Petitioner was arrested by a United States
Border Patrol agent after attempting to conceal himself in a
brush approximately three miles east of the Otay Mesa Port of
Entry and admitting he did not possess proper immigration
documents. Doc. No. 1 at 2. On April 21, 2016, Petitioner
signed a waiver of indictment and the United States Attorney
filed a superseding information charging Defendant with
illegally reentering the United States after deportation in
violation of 8 U.S.C. § 1326(a)-(b). See Doc.
No. 11. On May 3, 2016, Petitioner pled guilty to the
superseding information pursuant to a plea agreement.
See Doc. No. 17.
plea agreement, the parties agreed to a base offense level of
8, and -3 levels for acceptance of responsibility. Doc. No.
17 at 8. Petitioner also agreed to waive appeal and
collateral attack. Doc. No. 17 at 10-11. After Petitioner
entered his change of plea, the United States recommended
Petitioner be sentenced to the maximum amount permitted under
the guideline range of 46 months in custody. Doc. No. 22 at
2. Defense counsel recommended Petitioner be sentenced to 8
months in custody. Doc. No. 24-1 at 1.
sentencing hearing on July 25, 2016, this Court sentenced
Petitioner to 30 months in custody, followed by a three-year
term of supervised release. See Doc. No. 30.
Thereafter, Petitioner filed the instant motion seeking to
vacate or set aside his sentence and the United States filed
a response in opposition. See Doc. Nos. 27, 31.
seeks an order modifying on the grounds he received
ineffective assistance of counsel and he was sentenced
outside his guideline range. Respondent argues the motion
should be denied because defense counsel was not ineffective,
and his claim is barred by the appellate waiver in the plea
section 2255 motion may be brought to vacate, set aside or
correct a federal sentence on the following grounds: (1) the
sentence “was imposed in violation of the Constitution
or laws of the United States;” (2) “the court was
without jurisdiction to impose such sentence;” (3)
“the sentence was in excess of the maximum authorized
by law;” or (4) the sentence is “otherwise
subject to collateral attack.” 28 U.S.C. §
waived his right to appeal or collaterally attack his
judgment and sentence. Doc. No. 17 at 10-11. A knowing and
voluntary waiver of a statutory right is enforceable.
United States v. Navarro-Botello, 912 F.2d 318, 321
(9th Cir. 1990). The right to collaterally attack a sentence
pursuant to 28 U.S.C. section 2255 is statutory in nature,
and a defendant may therefore waive the right to file a
section 2255 petition. See United States v. Abarca,
985 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by
entering plea agreement whereby defendant waived right to
appeal his sentence, defendant relinquished right to directly
or collaterally attack his sentence on the ground of newly
discovered exculpatory evidence).
scope of a section 2255 waiver may be subject to potential
limitations. For example, a defendant's waiver will not
bar an appeal if the trial court did not satisfy certain
requirements under Federal Rule of Criminal Procedure 11 to
ensure that the waiver was knowingly and voluntarily made.
See Navarro-Botello, 912 F.2d at 321. Such a waiver
might also be ineffective where the sentence imposed is not
in accordance with the negotiated agreement or violates the
law. See Id.; United States v. Littlefield,
105 F.3d 527, 528 (9th Cir. 1997). Additionally, a waiver may
be “unenforceable” and may not
“categorically foreclose” a defendant from
bringing section 2255 proceedings where a petitioner claims
ineffective assistance of counsel challenging the
voluntariness of his plea. Lampert, 422 F.3d at 871;
Abarca, 985 F.2d at 1014; see also United States
v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).
establish an ineffective assistance of counsel claim, two
requirements must be met: (1) That the counsel's
performance was deficient, which requires a showing that
counsel made errors so serious that he/she was not
functioning as the “counsel” guaranteed by the
Sixth Amendment; and (2) That the counsel's deficient
performance prejudiced the petitioner, which requires a
showing that counsel's ...