Morgas-Mendoza v. United States

          ORDER DENYING MOTION TO VACATE

          HON. JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         BACKGROUND

         On 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.

         In the 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.

         At the 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.

         DISCUSSION

         Petitioner 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 agreement.

         I. Legal Standard

         A 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. § 2255(a).

         II. Analysis

         Petitioner 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).

         The 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).

         To 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 ...