United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
Pending before the Court is Petitioner's Amended Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (28 U.S.C. §2255). (Doc. 13.) The government filed a Response on January 6, 2014. (Doc. 16.) The government filed an addendum to its Response on January 15, 2014, which included an affidavit from Petitioner's prior defense counsel, Ronald Reyna. (Doc. 17.) Petitioner has not filed a reply.
On December 21, 2011, Petitioner was indicted for illegal re-entry after deportation in violation of 8 U.S.C. §1326, enhanced by 8 U.S.C. §1326(b)(2). (11-CR-4187, Doc. 5.) On January 27, 2012, Petitioner entered into a plea agreement with the government. (CR-11-4187, Doc. 15.) Pursuant to the plea agreement, Petitioner waived any right to appeal the Court's entry of judgment, any right to appeal the imposition of sentence upon defendant under 18 U.S.C. §3742, any right to collaterally attack his conviction and sentence under 28 U.S.C. §2255 or any other collateral attack, and any right to file a motion for modification of sentence, including under 18 U.S.C. §3582(c). Id. at 4.
At the change of plea hearing, Petitioner's defense attorney indicated that Petitioner's base offense level was 8, which carries a range of 0 to 71 months incarceration depending on the defendant's criminal history. (11-CR-4187, Doc. 31 at 2.) Petitioner's defense counsel acknowledged that Petitioner anticipated a sixteen-level enhancement based on a prior drug trafficking conviction in New York. Id. at 3. However, Petitioner was entitled to a three-level reduction based on his acceptance of responsibility, and a two-level reduction for providing a "fast track" plea. Id. Petitioner's defense counsel explained that based on Petitioner's total offense level and an anticipated criminal history category of IV, the anticipated total range of imprisonment is 46 to 57 months. Id. at 3.
Prior to accepting Petitioner's plea, Magistrate Judge Rateau expressed concern that the record might be unclear with respect to the sentencing range anticipated by Petitioner, given the terms of the plea agreement. Id. at 5. As such, Petitioner's defense attorney reiterated the sentencing range, explaining that "the range in total would be 30 to 78 months. We're anticipating as high as criminal history category IV, which could potentially render 46 to 57 [months]." Id. at 5.
After being placed under oath, Petitioner acknowledged that he understood the terms of the plea agreement. (11-CR-4187, Doc. 31 at 5-6.) Petitioner further stated he understood he was waiving his right to appeal. Id. at 6. Petitioner also stated that no promises had been made to him outside of what was contained in the plea agreement. Id. at 7. After having his constitutional rights explained to him, Petitioner pled guilty to the charge. Id. at 11.
As outlined in the presentence report, Petitioner's base offense level under the sentencing guidelines for a violation of 8 U.S.C. §1326(a) is 8. Since Petitioner had previously been deported following a drug trafficking offense, sixteen levels were added under U.S.S.G. §2L1.2(b)(1)(A)(i). Three levels were then subtracted since Petitioner accepted responsibility for his actions, and timely notified the government of his intention to plead guilty. Based on the level IV Criminal History Category, combined with a Total Offense Level of 21, the presentence report indicated a guideline range of 57 to 71 months incarceration. The presentence report further indicated that 1 to 3 years supervised release could be imposed.
Petitioner's sentencing occurred on April 9, 2012. ( See 11-CR-4187, Doc. 32.) At the outset of the hearing, the Court asked Petitioner if he was satisfied with the services provided by his attorney. Id. at 2. Petitioner responded that he was not satisfied. Id. at 3. When asked to clarify, Petitioner acknowledged that his counsel advised him that the range of imprisonment would likely be 46 to 57 months based on the plea agreement, but he believed that the sentencing range was too high, and he requested a new attorney. Id. at 3-5.
The Court explained to Petitioner that he had agreed to the terms of the plea agreement, which stipulated a sentencing range of 46 to 57 months along with 6 to 9 months on his violation of supervised release. Id. at 3. The Court further explained that his attorney had negotiated a favorable sentencing range with the government, since his guideline range is 57 to 71 months in custody, and it would be up to the Court to determine the exact sentence within the stipulated range. Id. at 3-4. The Court asked defense counsel if he was able to effectively communicate with Petitioner throughout the proceedings. Id. at 5. Defense Counsel responded, "Yes." Id. The Court then sentenced Petitioner to 46 months incarceration, and 6 months to run concurrently on the violation of supervised release. Id. at 10. Finally, the Court asked Petitioner if he was aware that since he was being sentenced in accordance with the plea agreement, his right to appeal had been waived. Petitioner responded in the affirmative. Id. at 12.
On April 20, 2012, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (28 U.S.C. §2255). (Doc. 11.) Petitioner filed an Amended Petition on October 7, 2013. (Doc. 13.) In his motion, Petitioner asserts three grounds for relief. First, Petitioner asserts his attorney did not file an appeal as per Petitioner's request. Id. at 5. Second, Petitioner asserts his attorney was ineffective in that he provided poor advice, which Petitioner used in deciding to plead guilty. Id. at 11. Third, Petitioner asserts his attorney deceived Petitioner into thinking he would only receive a 30 month sentence, and that his attorney was ineffective in placing Petitioner in the "fast track" program. Id. at 12.
Waiver of Right to File 28 U.S.C. §2255 Petition
As a preliminary matter, the Court must determine whether Petition is entitled to assert his claims in accordance with the plea agreement's waiver of appeals and collateral attacks. In this case, the plea agreement expressly provides that Petitioner waives any right to collaterally attack his conviction and sentence including an attack under 28 U.S.C. §2255. The plea agreement further states Petitioner waives any and all motions attacking the judgment and sentence provided that the sentence is consistent with the terms of the plea agreement. Finally, the plea agreement states that if Petitioner files a habeas petition, the government may withdraw from the plea agreement.
A waiver generally will be enforced if the plea 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). However, "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)). Thus, "a plea agreement waiver... does not waive the right to bring a §2255 ...