United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Movant's motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255. The
Magistrate Judge to whom this case was assigned issued a
Report and Recommendation (R&R) recommending that the
Motion be denied. (Doc. 13). Movant filed objections to the
R&R. (Doc. 14). The Government filed a response to
Movant's objections. (Doc. 17).
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original). Because
Petitioner objects to the overall conclusion of the R&R,
the Court will review the R&R de novo.
criminal case, Movant pled guilty. (Doc. 13 at 4-5).
Following sentencing, Movant appealed. (Id. at 5).
In his appeal, Movant argued that his plea was invalid
because it did not have a sufficient factual basis.
(Id. at 7-8). The Ninth Circuit Court of Appeals
found Movant's waiver of his right to appeal was valid,
thereby implicitly rejecting Movant's argument that his
plea as a whole was invalid under Rule 11. (Id. at
§ 2255 Motion, Movant recasts the same challenge he
presented to the Ninth Circuit Court of Appeals as an
ineffective assistance of counsel claim. (Id. at
9-10). Specifically, Movant argues that his trial counsel and
appellate counsel were ineffective for not making the
Rule-11-invalid-plea argument. (Id. at 9-10). The
R&R concludes that, because the Court of Appeals rejected
the merits of Movant's argument, both counsel were not
ineffective for not making a meritless argument.
(Id. at 9). Further, the R&R concludes that this
Court cannot reconsider the Court of Appeals' merits
decision because it is the law of the case. (Id. at
objects to the R&R and argues that the Magistrate Judge
is mistaken that the Ninth Circuit Court of Appeals issued a
merits decision because the Ninth Circuit Court of Appeals
relied on the waiver in Movant's plea agreement to
dismiss his appeal. Doc. 14 at 7. Thus, Movant concludes that
by applying the waiver, the Ninth Circuit Court of Appeals
did not consider the merits of Movant's Rule 11 claim.
Id. The Government replies and argues the R&R is
correct. Doc. 17 at 2.
the R&R notes:
[T]he longstanding law of the Ninth Circuit is that a waiver
is invalid if Rule 11 is not complied with. “An appeal
waiver will not apply if: 1) a defendant's guilty plea
failed to comply with Fed.R.Crim.P. 11; 2) the sentencing
judge informs a defendant that she retains the right to
appeal; 3) the sentence does not comport with the terms of
the plea agreement; or 4) the sentence violates the
law.” United States v. Bibler, 495 F.3d 621,
624 (9th Cir. 2007).
(Doc. 13 at 8-9). The R&R notes that Movant's
argument that his plea lacks a factual basis is based on
Federal Rule of Criminal Procedure 11(b)(3). (Id. at
9). The Government notes that Movant specifically argued Rule
11(b)(3) to the Court of Appeals. (Doc. 17 at 2 (citing Doc
10-1, Ex. A at 3)). The Ninth Circuit has held that a waiver
of the right to appeal (such as the one enforced against
Movant) is only enforceable if the requirements of Rule 11
were met. See United States v. Portillo-Cano, 192
F.3d 1246, 1252 (9th Cir. 1999).
on the foregoing, this Court agrees with the R&R that,
although the Ninth Circuit Court of Appeals did not expressly
hold that Movant's plea complied with Rule 11, the Court
of Appeals must have made that finding to have found
Movant's waiver enforceable. Thus, based on the Court of
Appeals decision, a finding that Rule 11 was met is the law
of the case. Further, counsel could not have been ineffective
for failing to raise a meritless Rule 11 argument.
IT IS ORDERED that the Report and Recommendation (Doc. 13) is
accepted; the objections (Doc. 14) are overruled; the motion
is denied and dismissed with prejudice and the Clerk of the
Court shall enter judgment accordingly.
FURTHER ORDERED that a certificate of appealability is
denied. (See Doc. 13 at 11-12).
FURTHER ORDERED that the Court has read Movant's
procedurally inappropriate motion to supplement; even if the
Court allowed the supplement, none of the arguments in the
supplement would change the ...