United States District Court, D. Arizona
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, District Judge.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Juan Rayas-Espinoza's ("Movant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) (the "Motion to Vacate"). The United States has responded (Doc. 4). Movant has not replied and the time to do so has passed. The matter is deemed ripe for consideration.
In April 2014, the Court sentenced Movant to forty-six months in prison after Movant pled guilty to the crime of Reentry of Removed Alien in violation of 8 U.S.C. § 1326(a). The Motion to Vacate contains four grounds for relief. The undersigned finds that three of the grounds have been waived pursuant to Movant's plea agreement. The final ground, which challenges the validity of Movant's guilty plea is without merit. As the record conclusively shows that Movant is entitled to no relief, it is recommended that the Court deny the Motion to Vacate without holding an evidentiary hearing.
On January 24, 2014, Movant signed a plea agreement in which Movant agreed to plead guilty to the crime of Reentry of Removed Alien in violation of 8 U.S.C. § 1326(a), with a possible sentencing enhancement under 8 U.S.C. §§ 1326(b)(1) or 1326(b)(2). (Doc. 4-1 at 2-11). The plea agreement contained Movant's admission that on October 18, 2010, Movant was convicted in the Superior Court of California, County of Fresno, of the following three felony offenses: (i) Evading Peace Officer Disregard Safety; (ii) Assault upon Peace Officer or Firefighter; and (iii) Obstruct Resisting Executive Officer. (Id. at 9). The plea agreement's "Waiver of Defenses and Appeal Rights" provision (the "Waiver Provision"
The defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petition), and any right to file a motion for modification of sentence, including under Title 18, United States Code, Section 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case.
( Id. at 5-6) (emphasis added).
The plea agreement also states that Movant discussed the agreement's terms with his attorney, agreed to the terms and conditions, entered into the plea voluntarily, and that Movant was satisfied with his counsel's representation. ( Id. at 7-9).
On February 18, 2014, U.S. Magistrate Judge Lawrence O. Anderson conducted a change of plea hearing. (Doc. 4-3 at 2-53). After Magistrate Judge Anderson completed the plea colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Movant pled guilty to the crime of Reentry of Removed Alien in violation of 8 U.S.C. § 1326(a). ( Id. at 47-48). Magistrate Judge Anderson found that Movant knowingly, intelligently, and voluntarily entered a plea of guilty and recommended that the Court accept Movant's guilty plea. ( Id. at 48; CR-14-0247-PHX-GMS, Doc. 15).
On April 10, 2014, the Court accepted Movant's guilty plea. (CR-14-0247-PHGMS, Doc. 20). A U.S. Probation Officer prepared a Pre-Sentence Investigation Report ("PSR"), which calculated a sentencing guideline range of imprisonment of 46 to 57 months. (Attachment 1 at 16). On June 6, 2014, District Judge Ronald S.W. Lew held a sentencing hearing. (Doc. 4-4 at 2-13). Judge Lew sentenced Movant to forty-six months in prison, followed by three years of supervised release. ( Id. at 10).
On November 17, 2014, Movant filed the Motion to Vacate (Doc. 1). On March 26, 2015, the Court ordered the United States to respond to the Motion to Vacate. (Doc. 3). The United States responded on May 14, 2015. (Doc. 4). Movant did not reply.
A. Enforceability of a Plea Agreement's Waiver Provision
It is a "fundamental rule that plea agreements are contractual in nature and are measured by contract law standards." United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). The plain language of a plea agreement generally will be enforced if the agreement is clear and unambiguous. Id. This includes a plea agreement's provision whereby a defendant waives the right to challenge his or her conviction and sentence through appeal or a collateral proceeding, such as a Section 2255 proceeding. "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 voluntarily made." United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009) (quoting Jeronimo, 398 F.3d at 1153) (alteration omitted). However, a defendant may still bring a claim alleging that the waiver or plea agreement was involuntary or that the ineffective assistance of counsel rendered the waiver or plea agreement 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 Section 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (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); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (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).
A court must conduct a hearing on a Section 2255 motion to vacate unless the motion "and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The Court may resolve the issue of whether a defendant knowingly and voluntarily agreed to a plea agreement's waiver provision based on a review of the written plea agreement and the record of the change of plea proceeding. See Jeronimo, 398 F.3d at 1153-55 (finding a waiver of a direct appeal knowing and voluntary based on the plea agreement and the change of plea proceeding).
B. Challenging a Guilty Plea/Plea Agreement Based on an Ineffective Assistance of Counsel Claim
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the U.S. Supreme Court explained that a defendant arguing an ineffective assistance of counsel ("IAC") claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the defendant. This is a deferential standard, and "[s]urmounting Strickland's high bar is never an easy task." Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
The Strickland test applies to challenges to guilty pleas and plea agreements that are based on IAC claims. Jeronimo, 398 F.3d at 1155. To establish the test's performance prong in that context, a defendant must establish that his or her counsel's advice regarding the guilty plea was outside "the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56-58 (1985). Regarding the prejudice prong, a defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Washington v. Lampert, 422 F.3d at 873 (quoting Hill, 474 U.S. at 58-59)).
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th ...