United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
Pending before the Court is Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody.
On September 5, 2012, Movant Samuel Jimenez-Alvarez ("Jimenez-Alvarez") was indicted by a federal grand jury on three counts of Bringing in Illegal Alien for Profit.
On November 13, 2012, an Information was filed alleging Jimenez-Alvarez had committed one count of Transportation of Illegal Aliens for Profit. On that same date, Jimenez-Alvarez entered a plea of guilty to the Information pursuant to a plea agreement. The plea agreement included the following agreement regarding sentence:
1. Pursuant to Rule 11(c)(1), Fed.R.Crim.P., the government and the defendant stipulate and agree that 24-36 months imprisonment is an appropriate disposition of this case.
The parties agree that the above-mentioned sentencing range reflect aN upward departure in exchange for the government not filing a charge of, Bringing in an Illegal Alien for Financial Gain, Title 8, United States Code, Section 1324(a)(2)(B)(ii), that carries a statutory mandatory minimum term of three years imprisonment. This plea is contingent on the defendant being placed on Criminal History Category I. Both parties reserve the right to withdraw from this plea agreement if the defendant exceed Criminal History Category I.
Response, Ex. A, p. 2.
On January 22, 2013, the Hon. Jennifer G. Zipps sentenced Jimenez-Alvarez to the custody of the Bureau of Prisons for a period of 30 months with credit for time served, to be followed by a one year term of supervised release.
On September 23, 2013, Jimenez-Alvarez filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Jimenez-Alvarez asserts in Ground One that the Court abused its discretion by imposing a sentence in excess of the maximum authorized under the United States Sentencing Guidelines (U.S.S.G.), thus violating Jimenez-Alvarez's due process rights. In Ground Two, Jimenez-Alvarez asserts that his counsel failed to properly object to "an improper upward adjustment of the sentence, " thereby violating Jimenez-Alvarez's Sixth Amendment rights. In Ground Three, Jimenez-Alvarez contends that his sentence is illegal, that he did not have effective assistance of counsel during his criminal proceedings, and that the sentence exceeds the applicable base offense level authorized under the U.S.S.G. In Ground Four, Jimenez-Alvarez alleges that the government engaged in misconduct by speculating that Jimenez-Alvarez had previously committed other crimes and recommending a sentencing enhancement, thereby violating Jimenez-Alvarez's Fifth Amendment rights. In addition, Jimenez-Alvarez asserts in his supporting memorandum that his counsel "misrepresented" him and that he "signed a plea agreement that was not read or explained to him by counsel" and that his counsel "only told Jimenez-Alvarez to sign the plea agreement and to say, yes! I'm guilty." Jimenez-Alvarez states that he "lacks knowledge of the English language and feels he was deceived by counsel." See Motion, Doc. 1. A response has been filed by the government. Jimenez-Alvarez has not filed a reply.
On May 13, 2014, this matter was reassigned to this Court.
II. Waiver of Right to File 28 U.S.C. § 2255 Petition
A waiver generally will be enforced if the agreement, by its terms, expressly waives the right and the waiver is knowingly and voluntarily made. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Vences, 169 F.3d 611 (9th Cir. 1999)(sentence was not illegal where it was authorized by the judgment of conviction and was not in excess of the statutory penalty). In this case, the plea agreement provided that Jimenez-Alvarez waived any right to appeal the Court's entry of judgment or sentence and waived any right to collaterally attack his conviction and sentence under 28 U.S.C. § 2255 or any other collateral attack. The plea agreement further precludes Jimenez-Alvarez from filing any and all motions attacking the judgment and sentence providing the sentence was consistent with the plea agreement. Jimenez-Alvarez's sentence of 30 months is consistent with the plea agreement and its stipulated sentence.
However, the Ninth Circuit has left "open the possibility that [a habeas petitioner] might raise [an] ineffective assistance argument on federal habeas procedure, through a § 2255 motion, notwithstanding that [his] appeal waiver covered all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence.'" United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo-Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). A "decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside the range of competence[.]'" United States v. Ruiz, 241 F.3d 1157, 1165 (9th Cir. 2001), reversed on other grounds, quoting DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir. 2000). To prevail on a claim of ineffective assistance of counsel, Jimenez-Alvarez must satisfy a two prong test, demonstrating: (1) deficient performance, such that counsel's actions were outside the wide range of professionally competent assistance, and (2) that Jimenez-Alvarez was prejudiced by reason of counsel's actions. Strickland v. Washington, 466 U.S. 668, 686-90, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984). Additionally, a defendant's Sixth Amendment right to counsel "extends to the plea bargaining process." Lafler v. Cooper, ___ U.S. ___, ___, 132 S.Ct. 1376, 1384 (2012). "A claim of ineffective assistance ...