United States v. Ortiz

          ORDER

         Defendant 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.

         For reasons explained below, defendant's motion is DENIED and the government's motion to dismiss is GRANTED.

         I. BACKGROUND

         On 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.^[1] 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 No. 148.

         The 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. § 5C1.2.

         The 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.

         The 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.

         In 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.^[2]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.

         The 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.

         II. LEGAL STANDARD

         A. 28 U.S.C. § 2255

         A 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) (citations omitted).

         B. Ineffective Assistance of Counsel

         A claim 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 ...