United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge
Pending before the Court is Movant’s pro se Motion Under 28 U.S.C. '2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 1). Respondent has filed a Response (Doc. 4). For the following reasons, the Court denies the Motion and dismisses this action.
I. Procedural history
On April 1, 2014, Movant was charged by criminal complaint with illegal reentry in violation of 8 U.S.C.
§ 1326(a), (b)(1), a felony, (Count One) and illegal entry in violation of 8 U.S.C.
§1325, a misdemeanor (Count Two). (Doc. 1) filed in United States v. Edilberto Rodriguez-Vega, No. 14-24387PO-BPV (“No. 14-24387PO-BPV”)). On April 1, 2014, with the assistance of counsel, Movant executed a plea agreement pleading guilty to the misdemeanor charge of illegal entry in exchange for, inter alia, dismissal of the felony charge and a stipulated sentence of 150 days of imprisonment. (Plea Agreement (Doc. 1-1) filed in No. 14-24387PO-BPV). At the change of plea proceeding, Movant acknowledged that he is a citizen of Honduras, he had entered the United States illegally and on or about March 30, 2014, he was found at or near Green Valley, Arizona, and also that on or about March 20, 2014, he entered the United States at or near Sasabe, Arizona, at a time and place other than as designated by Immigration Officers of the United States. (Id.). Movant was sentenced to 150 days of imprisonment with credit for time served, as stipulated in the Plea Agreement. (Judgment (Doc. 1, p.2) filed in No. 14-24387PO-BPV); see also Plea Agreement (Doc. 1-1, p. 2) filed in 14-24387PO-BPV (the sentence “will commence at the time of plea and sentencing.”)).
The docket also reflects that on August 26, 2014, Movant was arrested pursuant to a warrant on charges of violation of conditions of supervised release relating to a conviction in the Western District of Texas in which he was sentenced to 21 months of imprisonment followed by 3 years of supervised release. (See Doc. 1, filed in United States v. Edilberto Rodriguez-Vega, No. 14-150-mj-DTF (D. Ariz.) (supervised release commenced on March 14, 2013)). On August 27, 2014, Movant was committed to the Western District of Texas. (Doc. 4, filed in No. 14-150-mj-DTF). On November 5, 2014, the Honorable Alia Moses, District Judge for the Western District of Texas, found that Movant violated the terms of supervised release and committed Movant to the custody of the U.S. Bureau of Prisons for a term of 18 months, “to run consecutive to Docket No. 14-24387M - District of Arizona, Tucson, Division, pursuant to 18 U.S.C.
§ 3583(e)(3).” (Doc. 39 filed in United States v. Edilberto Rodriguez-Vega, CR 11-1370(1)-AM (W.D. Tex.)).
Although it appears that Movant has already served the 150 days imposed by this Court in No. 14-24387PO-BPV, he may challenge that sentence so long as he is still in custody under a sentence running consecutive to that sentence. Cf. Garlotte v. Fordice, 515 U.S. 39, 47 (1995) (habeas petitioner subject to consecutive sentences may challenge conviction for sentence already served so long as he is still in custody under sentence consecutive to that challenged); United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) (applying Garlotte in context of '2255 motion).
Movant raises three grounds for relief before this Court. In Ground One, he raises a duress defense to the charges against him. In Ground Two, Movant alleges that he was denied due process by immigration officials during expedited removal proceedings. In Ground Three, Movant alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment during the change of plea proceeding.
A. Summary Dismissal
A motion filed pursuant to '2255 collaterally attacking a sentence, should be presented to the court which imposed the allegedly improper sentence. 28 U.S.C.
§ 2255; Rule 4(b) of the Rules Governing Section 2255 Proceedings. Section 2255(a) authorizes the district court to “vacate, set aside or correct” a sentence of a federal prisoner that “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). Under § 2255, a district court must grant a hearing to determine the validity of a petition unless it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief. United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994); Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. “Merely conclusory statements in a § 2255 motion are not enough to require a hearing.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). As set forth below, the record supports the conclusion that summary dismissal under Rule 4(b) is warranted because Movant has waived his right to file a § 2255 motion.
In his Plea Agreement, Movant agreed, in pertinent part, to
waive: (1) any right to appeal the Court’s entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); 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. If the defendant files a notice of appeal or habeas petition, notwithstanding this agreement, defendant agrees that this case shall, upon motion of the government, be remanded to the district court to determine whether the defendant is in breach of this agreement and, if so, to permit the government to withdraw from the plea agreement.
(Plea Agreement (Doc. 1-1, p.2 at &6), filed in No. 14-24387PO-BPV). Although there are “strict standards for waiver of constitutional rights[, ]” United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir.2005), “[a] defendant’s waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and ...