United States District Court, E.D. California
John Ortiz moves to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255 based on ineffective assistance
of counsel. Mot., ECF No. 200. The government opposes the
motion and moves to dismiss, arguing Ortiz's waiver of
his right to collateral attack bars the motion. Mot. to
Dismiss (“MTD”), ECF No. 211. Ortiz has filed a
response, Resp., ECF No. 213.
reasons explained below, defendant's motion is DENIED and
the government's motion to dismiss is GRANTED.
January 11, 2017, Ortiz plead guilty to conspiracy to
distribute and possess with the intent to distribute 50 grams
of a mixture and substance containing a detectable amount of
methamphetamine, as charged in an information. Superseding
Info., ECF No. 92; Plea Agreement, ECF No. 93; Hr'g
Minutes, ECF No. 94. The court sentenced Ortiz to 120 months
imprisonment, followed by 36 months of supervised release,
and a special assessment of $100.00. Sentencing Minutes, ECF
court's sentence followed the binding plea agreement made
under Federal Rule of Criminal Procedure 11(c)(1)(C), in
which the parties agreed to a sentence between eight and
twelve years; the court sentenced in the middle of this
range. Plea Agreement at 2, 3. In estimating the applicable
sentencing guidelines, the government maintained Ortiz did
not qualify for the safety valve-a statutory mechanism
permitting relief from a mandatory minimum sentence when
certain criteria are satisfied-because “he was
knowingly not truthful in his answers to some material
questions put to him, ” though “[t]he defense
contest[ed] this position.” Id. at 8; see
also 18 U.S.C. § 3553(f)(1)-5; U.S.S.G. §
plea agreement specifically noted Ortiz had been
“charged separately by Indictment in No.
2:15-CR-124-GEB . . . with violations of 18 U.S.C. §
371, conspiracy to deal firearms without a license . . .; and
18 U.SC. § 922(a)(1)(A), dealing firearms without a
license . . . .” Plea Agreement at 2. Under the
agreement, the government would move to dismiss the
information in the instant case upon sentencing and would
also “move to dismiss the charges against  [Ortiz] in
that [other] case within 30 days of sentencing in this case,
” though “the court [could] and should consider
the offense conduct of the defendant in that case in
sentencing in this case.” Id. at 2, 5.
plea agreement also outlined the government's
obligations, explaining that should Ortiz violate the
agreement, withdraw his guilty plea or violate his waiver of
the right to appeal, the government would be relieved of its
obligation not to reinstate dismissed charges against him.
Id. at 5.
accepting the plea deal, Ortiz contends he received
ineffective assistance of counsel because his attorney did
not “adequately explain the plea deal to [him]”
and he “was misled into signing a plea deal that was
not fair.” Mot. to Vacate, ECF No. 200 at
1.Specifically, defendant argues his attorney
did not “ma[k]e a good argument for a lesser sentence,
” failed to “give the judge . . . all of the
positive information about [him], ” did not show up for
[his] P.S.R. interview, ” “did not appear for
another court date regarding the dismissal of the second
case, ” and “did not argue for [a] 2 point
reduction for [the] safety valve which [he] did not get . . .
.” Id. at 1-2.
government argues plaintiff has not provided necessary facts
supporting his claim that his plea agreement was unfair or
that his attorney misled him about the nature of the
agreement. See Mot. to Dismiss at 3.
28 U.S.C. § 2255
federal prisoner collaterally attacking the validity of his
or her conviction or sentence must do so by way of a motion
to vacate, set aside, or correct the sentence under 28 U.S.C.
§ 2255, filed in the court that imposed sentence.
Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
1988). Under § 2255, a federal court may grant relief
“if the sentence was imposed in violation of the
Constitution or laws of the United States.” United
States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011)
Ineffective Assistance of Counsel
for relief based on ineffective assistance of counsel is
comprised of two elements: (1) the defendant must show
counsel's performance was so seriously deficient that
counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment; and (2) the defendant must
show counsel's deficient ...