United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, District Judge.
Defendant/Movant Valerano Jimenez-Marcial, who is confined in the Giles W. Dalby Correctional Facility in Post, Texas, filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV 14-2117 ("CV") Doc. 1; CR 11-2012 ("CR") Doc. 57.) Plaintiff United States of America (the "Government") filed a Response (CV Doc. 5), but despite having the opportunity to do so, Movant has not filed a reply.
In his Motion, Movant alleges four grounds of ineffective assistance of counsel as follows: (1) Movant's trial counsel was ineffective by failing to properly advise Movant of his constitutional rights, which resulted in an unknowing and involuntary guilty plea; (2) Movant's counsel was ineffective by failing to object to an unsupported allegation in the presentence worksheet in determining an aggravated felony; (3) Movant's counsel did not assure that there was an adequate factual basis for Movant's guilty plea; and (4) Movant's counsel failed to file a timely notice of appeal.
On July 15, 2011, Defendant pleaded guilty to an indictment charging him with Illegal Reentry, pursuant to 8 U.S.C. § 1326(a) (the "2011 Felony"). (CR Doc. 13.) Under the terms of the plea agreement, the parties entered into a detailed framework for determining Defendant's sentence. (Id. at 2-5.) In the plea agreement, Defendant expressly waived "any right to appeal... and any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255...." (Id. at 6.) Pursuant to the plea agreement, the Court sentenced Defendant to 21 months' imprisonment, and a 2-year term of supervised release. (CR Doc. 20.)
Two years later, on July 12, 2013, Defendant pleaded guilty to an additional Illegal Reentry violation (the "2013 Felony"), and admitted to violating his supervised release. (CR Doc. 44.) As with the 2011 Felony, Defendant pleaded guilty pursuant to a plea agreement, which provided sentencing terms for both the new felony and the violation of supervised release. In the 2013 Felony plea agreement, Defendant expressly waived "any right to file an appeal... and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions)." The court sentenced Defendant to 33 months' incarceration for the 2013 Felony, with an eight-month consecutive sentence for violating his supervised release in the 2011 Felony. (CR Doc. 44.)
On March 24, 2014, Defendant filed an untimely notice of appeal in the 2011 Felony. Defendant failed to respond to the Ninth Circuit's Order to Show Cause; therefore, the Ninth Circuit dismissed Defendant's appeal as untimely.
The Government claims in its Response that pursuant to the plea agreement and record from the 2011 felony proceedings, Movant has waived Grounds Two, Three, and Four. As to Ground One, the Government contends that Movant "entered into the plea agreement knowingly and voluntarily, " and in any event argues that Ground One has no merit.
A. Waiver of Grounds Two, Three, and Four
The Ninth Circuit Court of Appeals has found that there are "strict standards for waiver of constitutional rights." United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible to presume waiver from a silent record, and the Court must indulge every reasonable presumption against waiver of fundamental constitutional rights. See United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004).
Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face. See United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). A defendant may waive the statutory right to bring a § 2255 action challenging the length of his sentence. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). The only claims that cannot be waived are claims that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); Pruitt, 32 F.3d at 433 (expressing doubt that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver).
"Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside [the category of ineffective assistance of counsel claims challenging the validity of the plea or the waiver] are waivable." United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). See also Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (joining the Second, Fifth, Sixth, Seventh, and Tenth Circuits in holding that "a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during sentencing."). As part of his plea agreement, Movant made the following waiver: [t]he [D]efendant further waives: (1) any right to appeal the Court's entry of judgment against defendant...; and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his/her conviction or sentence in this case.
(CR Doc. 15 at 6.) During Defendant's change of plea proceeding, the Court confirmed Movant's ...