Opinion
Civil Case No.: 10-cv-2265-BEN Criminal Case No.: 09-cr-4298-BEN
11-12-2013
ALVARO LOPEZ-MAGANA, Defendant-Petitioner, v. UNITED STATES OF AMERICA, Plaintiff-Respondent.
ORDER DENYING MOTION TO
VACATE. SET ASIDE.OR
CORRECT SENTENCE UNDER 28
U.S.C. § 2255.
[Docket No. 30]
Before this Court is a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to § 2255 filed by Petitioner Alvaro Lopez-Magana. (Docket No. 30). For the reasons stated below, the Motion is DENIED.
BACKGROUND
As set forth in the Criminal Complaint in this matter, Petitioner Alvaro Lopez-Magana and another individual were stopped by a U.S. Border Patrol agent on October 29, 2009 after the Border Patrol received a report of possible illegal aliens walking along Live Oak Springs Road. (Exh. 4 at 2). Both admitted to being citizens and nationals of Mexico illegally present in the United States, and were arrested. (Id.). Routine record checks revealed that Petitioner had previously been deported to Mexico on December 22, 2008, and that Petitioner had not applied for permission to return to the United States. (Id.). On December 21, 2009, the United States filed a Superseding Information charging Petitioner with one count of misdemeanor illegal entry in violation of 8 U.S.C. § 1325, and one count of felony illegal entry in violation of 8 U.S.C. § 1325. (Exh. 6).
The only exhibits in this matter were filed with the Government's Response. (Docket No. 37). All references to exhibits in this Order should be understood as referring to that Response.
Petitioner entered into a plea agreement with the United States on December 21, 2009. (Exh. 7). The final page of the agreement bears Petitioner's signature, and he initialed the other pages of the agreement. (Id.). The plea agreement stated both of the charges and their maximum penalties. (Id. at ¶ 2). The agreement stated that in signing the agreement, Petitioner represented that he had full opportunity to discuss the facts and circumstances of the case with defense counsel, and "has a clear understanding of the charges and the consequences of this plea." (Id. at ¶ 2(b)(1)). Petitioner admitted to certain facts in his plea, including the fact that, he had previously been deported after an aggravated felony conviction for conspiracy to distribute a controlled substance, and acknowledged that his prior conviction resulted in a 16-level increase in his offense level. (Id. at ¶ 4).
The agreement also included a broad waiver of his right to seek appellate review or collaterally attack his plea, conviction, or sentence. Paragraph 12 of the Agreement stated that he agreed that he:
waives to the full extent of the law, any right to appeal or collaterally attack the guilty plea, conviction and sentence, including any restitution order, unless the Court imposes a custodial sentence greater than the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing or the statutory mandatory minimum term, if applicable.(Id. at ¶ 12).
Finally, the agreement states, immediately above the signature lines, that by signing the agreement, Petitioner certified that he read the agreement (or had it read to him in his native language), discussed its terms with defense counsel, and "fully [understood] its meaning and effect." (Id. at ¶ 15). It further stated that Petitioner was satisfied with the representation received. (Id.).
Petitioner entered a guilty plea on December 21, 2009, before Magistrate Judge Barbara Lynn Major. (Exh. 8). At the hearing, he stated that he had signed the plea agreement after it was read to him in Spanish, that he had discussed the document with his attorney, and that the lawyer explained the document and answered any questions. (Id. at 13). He also stated that he had discussed the sentencing guidelines and their applicability with counsel. (Id. at 12-13). The Magistrate asked Petitioner about the provision of the plea agreement waiving his right to appeal and right to collateral attack. (Id. at 14). She ensured he had discussed the provision with his attorney, and advised him that he was waiving his rights to appeal or collaterally attack the plea, conviction, or sentence, to the full extent of the law. (Id. at 14). Petitioner stated that he understood that provision and agreed to be bound by the waiver. (Id.). He stated he was satisfied with the advice he received from his attorney, and his attorney affirmed he had gone over the agreement with Petitioner and believed that Petitioner understood the agreement. (Id. at 13-15). The Magistrate made explicit findings and recommendations that the guilty plea was made "knowingly and voluntarily with the full understanding of the nature of the charge, the rights that you have and are giving up, and all of the other consequences of your guilty plea." (Id. at 19).
At the sentencing hearing on February 8, 2010, this Court confirmed with Petitioner and his counsel that Petitioner had waived and given up his right to appeal or collaterally attack his plea, his conviction, and his sentence. (Exh. 12 at 7-8). This Court sentenced Petitioner to 6 months of confinement for the misdemeanor illegal entry, 24 months of consecutive confinement for the felony illegal entry, and one year of supervised release. (Exh. 12 at 6; Docket No. 28).
On November 1, 2010, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to § 2255. Petitioner asserted six grounds for relief: (1) the Court failed to comply with Federal Rule of Criminal Procedure 11; (2) the sentence was greater than necessary to meet the sentencing goals of § 3553(a), (3) he unknowingly and involuntarily waived his right to appeal; (4) his ineligibility for certain BOP benefits should have been considered in sentencing, and resulted in an Equal Protection violation; (5) his sentence is unreasonable due to an improper increase of his base-offense level as a result of his prior conviction; and (6) that he does not have an "aggravated felony prior conviction." In the case of each ground, he indicated that he did not pursue a direct appeal or any post-conviction motion, petition, or application. (Mtn. at 5-14). The Government filed a Response on June 3,2011. (Docket No. 37). Petitioner did not file a Traverse.
LEGAL STANDARD
A district court may "vacate, set aside or correct" the sentence of a federal prisoner that was 1) imposed in violation of the Constitution or law of the United States, 2) where the court lacked jurisdiction to impose the sentence, 3) where the sentence was in excess of the maximum authorized by law, or 4) where the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing before denying a § 2255 motion, unless it is conclusively shown that the prisoner is entitled to no relief. 28 U.S.C. § 2255(b). However, if it is clear the petitioner has failed to state a claim, or has "no more than conclusory allegations, unsupported by facts and refuted by the record," a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
DISCUSSION
A. Petitioner Waived His Right to Appeal or Collaterally Attack His Sentence
As part of the plea agreement, Petitioner waived his right to appeal and collaterally attack his sentence. (Exh. 7 at ¶ 15; Exh. 12 at 7-8). The Ninth Circuit has upheld the validity of waivers of the right to appeal and collateral attack. United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990), cert denied, 503 U.S. 942 (1992) (upholding a waiver of the right to appeal); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert .denied, 508 U.S. 979 (1993) (upholding a waiver of the right to a collateral attack under § 2255). The rights of direct appeal and collateral attack in a criminal case are purely statutory. Id.
A waiver of the right to direct appeal and collateral attack will be upheld where it was "knowing and voluntary." Id. A knowing and voluntary waiver of appellate rights is enforceable where the language of the waiver encompasses the right to appeal on the grounds raised. See United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (citation omitted). The same standard has explicitly been applied to waiver of collateral attacks. Patterson-Romo v. United States, No. 10-cr-3319, No. 12-cv-1343, 2012 WL 2060872, at* 1 (S.D. Cal. June 7, 2012). However, the Ninth Circuit has declined to hold that a waiver categorically forecloses a defendant from bringing any § 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of the waiver. Abarca, 985 F.2d at 1014.
i. Knowing and Voluntary
The waiver of a right to appeal is knowing and voluntary if the plea agreement as a whole was knowing and voluntary. United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005) (overruled on other grounds). A waiver will be considered knowing and voluntary where the plea colloquy satisfies Rule 11, and the record reveals no misrepresentation or gross mischaracterization by counsel that tainted the plea. United States v. Sepulveda-Iribe, 197 Fed. Appx. 592, 592 (9th Cir. 2006) (citing Jeronimo, 398 F.3d at 1157 n.5). After a careful review of the written plea agreement, the Rule 11 plea colloquy, and the entire record in this matter, this Court finds that the plea and the waiver were knowing and voluntary.
As discussed above, Petitioner signed the last page of the plea agreement, and initialed the other pages. (Exh. 7). He indicated that he had read and fully understood it, and was satisfied with the representation of his attorney. (Id. at ¶ 15).
Review of the transcript reveals that the Magistrate complied with the requirements of Rule 11 of the Federal Rules of Criminal Procedure. The hearing transcript clearly refutes Petitioner's claim that Rule 11 was not followed. Petitioner claims that he was not advised of his rights, but the Magistrate clearly detailed the rights Petitioner was giving up, including those specified in Rule 11. Fed. R. Crim. P. 11(b)(1); (Exh. 8 at 7-10). Petitioner claims that the Magistrate failed to assure that his plea was knowing and voluntary "(by inter, alia, accurately informing him of the full range of punishment to which he was exposed)." (Mtn. at 5). The transcript reveals that the Magistrate informed him of the charges and the possible punishments, and Petitioner stated that he understood. (Exh. 8 at 9-11). He also claims the Magistrate failed to assure an adequate factual basis for the plea. (Mtn. at 5). However, the Magistrate specifically asked Petitioner about the details of the crime he had allegedly committed, and Petitioner admitted to all of the necessary elements. (Exh. 8 at 16-18).
The Magistrate also ascertained that Petitioner was satisfied with the advice of his counsel. (Id. at 13-14). The Magistrate specifically discussed the waiver of the right to appeal and collateral attack with Petitioner, and Petitioner represented to the Magistrate that he understood this, and agreed to be bound by the waiver. (Id. at 14-15). The Magistrate specifically found that the guilty plea was knowing and voluntary. (Id. at 18-19).
The Court notes that, in the course of the Rule 11 discussion, Petitioner also references a "breach" of the plea agreement. (Mtn. at 5). This is a conclusory allegation, with no supporting facts in the record, and he fails to make any connection between Rule 11 and any breach of the plea agreement.
Since the Rule 11 colloquy was proper, the waiver will be considered proper if there is no misrepresentation or gross mischaracterization by counsel. See Sepulveda-Iribe, 197 Fed. Appx. at 592. No misrepresentation or mischaracterization has been alleged. Petitioner does state in Ground Three that: "substantial issues for review are presented by this Court, colorable basis extends to attack the sentence, based on conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charges and the consequences of the plea." (Mtn. at 8). It is not clear to this Court that Petitioner is arguing that his plea was actually "unlawfully induced," rather than the fact that such an inducement might be grounds to attack a sentence, much like a challenge to knowledge or voluntariness. To the extent Petitioner is referring to something beyond what appears in his motion, Petitioner must present it to the Court. A bare, conclusory allegation will not suffice. However, this Court notes that he affirmed to the Magistrate that he was not threatened, that he was not pleading guilty to help another and that, outside the plea agreement, no promises were made to him by anyone to get him to plead guilty. (Exh. 8 at 15).
Additionally, this Court notes that Petitioner stated that "the government has failed to express its intent to enforce this waiver." (Mtn. at 8). It is unclear to this Court what Petitioner is attempting to allege. However, the Government clearly included the waiver in the agreement, and there has been no occasion known to this Court where the Government might be required to inform Petitioner that it would enforce the waiver.
After full consideration of the briefing and the record in this matter, this Court concludes that the waiver of appellate and collateral attack statutory rights was knowing and voluntary.
This Court also notes that because there was no violation of Rule 11, Ground One of the Petition is necessarily denied on the merits. (Mtn. at 5). Ground Three, which alleges an unknowing and involuntary waiver of appellate rights, must also fail on the merits. (Id. at 8).
ii. Scope of the Waiver
Petitioner's claims will only be waived if they come within the scope of the provision. Plea agreements are contractual in nature and are measured by contractual standards. United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.), cert. denied, 531 U.S. 1057 (2000). In interpreting a plea agreement, a court looks to what the parties reasonably understood to be the terms of the agreement. See United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993) (citation omitted).
The plea agreement in this case specifically provides that Petitioner waived "to the full extent of the law, any right to appeal or collaterally attack the guilty plea, conviction, and sentence," unless this Court imposed a sentence in excess of the high end of the guideline range based on the offense level recommended by the Government in the plea agreement. (See Exh. 7 at ¶ 12). This Court sentenced Petitioner to 30 months of confinement, below the recommended guideline range of 46-57 months. (Exhs. 9, 10, 12 at 6).
The language of the plea agreement is broad and explicitly covers Petitioner's sentence. It is thus properly read to cover Ground Two (the reasonableness of the sentence under § 3553), Ground Four (failure of the court to consider ineligibility for programs and pre-release custody as mitigating factor), Ground Five (sentence unreasonable under § 3553 because sentencing guideline produced unreasonably high range, the court failed to consider mitigating circumstances of prior conviction, and the court emphasized his full involvement), and Ground Six (court incorrectly found he had a prior aggravated felony). A narrower interpretation would render the waiver meaningless.
Similarly, the waiver covers an attack on the plea. This court has already concluded that the plea was knowing and voluntary. To the extent that Ground One might be read to assert other problems with the plea, such as a challenge to the finding of factual support for the plea, this would be covered by the waiver.
B. Failure to Directly Appeal
Additionally, Petitioner cannot raise issues in a § 2255 motion that he could have raised on appeal. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994); Reed v. Farley, 512 U.S. 339, 354 (1994). Petitioner did not directly appeal any aspect of his sentence or conviction. A claim not raised on direct appeal generally may only be raised on collateral review if the petitioner shows 1) cause and 2) prejudice. See Massaro v. United States, 538 U.S. 500, 504 (2003).
Petitioner could have raised his asserted grounds on appeal. To the extent Petitioner had any valid basis for challenging his waiver of appellate rights, he could have raised such an issue on his direct appeal. See, e.g., United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004).
C. Failure to Establish Ineffective Assistance of Counsel as Excuse for Failure to Directly Appeal
Petitioner's only explanation for his failure to assert his claims on direct appeal is a repeated claim of "Ineffective assistance of counsel (failure to file notice to appeal timely)." (E.g. Mtn. at 13). Petitioner does not assert ineffective assistance of counsel as a separate ground for relief. Petitioner cites ineffective assistance of counsel only to explain why he did not file an appeal as to Grounds Two through Six, and this Court presumes for this discussion that Petitioner also intended to state the same explanation as to Ground One. Petitioner also stated that "Due to that there was not a direct appeal proceedings, because of the ineffective assistance of counsel during pre-trial proceedings." (Id. at 14).
Ineffective assistance of counsel may constitute "cause" in excusing a defendant's failure to raise other issues. United States v. Withers, 638 F.3d 1055, 1064-65 (9th Cir. 2010). To constitute "cause," attorney error must meet the "ineffective assistance of counsel" constitutional standard. See id; Moorman v. Schriro, 426 F.3d 1044, 1058-59 (9th Cir. 2005). An ineffective assistance of counsel claim must demonstrate that (1) defense counsel's performance was deficient; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 690-92 (1994). Petitioner's claim does not meet this test.
As this Court concludes that ineffective assistance of counsel has not been demonstrated under the constitutional standard, Petitioner would not be able to prevail upon a separate ineffective assistance of counsel claim, even if this Court very liberally construed the Motion to include such a claim.
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Petitioner claims "ineffective assistance" and a failure to file in a timely fashion, but provides no argument that the failure to file was deficient. Petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688. Because of the difficulties inherent in evaluating the performance of counsel after the fact, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.
In the case at hand, it is undisputed that no notice of appeal was filed. However, the plea agreement included a broad waiver of the right of direct appeal. As noted above, that waiver was valid and covered the issues Petitioner seeks to raise. On the basis of the facts alleged by Petitioner, counsel's decision appears to be within the bounds of reasonable professional assistance. Without more, this Court cannot conclude that counsel was deficient in failing to pursue an appeal. Petitioner must provide this Court with some basis beyond conclusory allegations to conclude that counsel's failure was deficient.
Additionally, if a defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to, relief. Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). Petitioner must demonstrate that there is a "reasonable probability that, but for counsel's deficient failure, he would have timely appealed." Id. Here, however, Petitioner fails to demonstrate prejudice, as he does not even allege that he asked his counsel to file an appeal, or provide any basis from which this Court can conclude that he would have filed, but for counsel's incompetence. C.f. Manning v. Foster, 224 F.3d 1129, 1135-36 (9th Cir. 2005) (finding prejudice where the petitioner demonstrated that "but for" his attorney's errors he would have appealed by showing that he informed his attorney of his desire to appeal by phone and in a letter).
Although there was one reference to "pre-trial" incompetence, Petitioner did not point to any particular action or inaction by counsel that was allegedly incompetent. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment; a bare, conclusory allegation will not suffice. See Strickland, 466 U.S. at 690.
Petitioner has not properly alleged ineffective assistance of counsel as an excuse. As such, his claims are procedurally defaulted because of Petitioner's unexcused failure to directly appeal.
D. Equal Protection Claim
Petitioner also claims that the disparate sentences between alien and American inmates because of immigration detainers is a violation of the Equal Protection Clause. (Ground Four). Petitioner primarily appears to be contending that this Court failed to consider how his alien status and ineligibility for certain programs would affect his sentence. This challenge has been waived, and otherwise should have been raised on direct appeal, as stated above. However, to the extent that Petitioner also seeks to challenge the manner, location, or conditions of the sentence's execution, such claims generally must be brought pursuant to 28 U.S.C. §2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
E. Evidentiary Hearing
Unless the motion and the records of a case conclusively show that the prisoner is entitled to no relief, a court is required to grant a prompt hearing to determine the issues and make findings of fact and law with respect thereto. 28 U.S.C. § 2255(b). However, where the record demonstrates that a petitioner has failed to state a claim, or asserts allegations that are so frivolous or incredible as to warrant summary dismissal, a district court may deny a § 2255 motion without an evidentiary hearing. Quan, 789 F.2d at 715. Where a petitioner has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record," no hearing is required. Id.
In the case at hand, this Court has determined Petitioner's claims all clearly fail on the merits, or are covered by the waiver. Alternatively, Petitioner failed to raise the issues on direct appeal, and has provided this Court with no excuse for failing to do so beyond conclusory and unsupported assertions of ineffective assistance of counsel. As such, this Court determines that Petitioner is entitled to no relief, and no evidentiary hearing is required.
CONCLUSION
Upon a full review of the briefing and the record, this Court concludes that there was a proper Rule 11 colloquy. In the plea agreement, during the Rule 11 colloquy, and at sentencing, Petitioner made a knowing and voluntary waiver of his statutory rights to appeal and collateral attack. Grounds One and Three therefore fail on the merits. The scope of the waiver precludes the Petitioner from collaterally attacking his sentence in Grounds Two, Four, Five, and Six. Additionally, Petitioner failed to assert his claims on direct appeal, and has not demonstrated that this failure is excused.
The Motion to Vacate, Set Aside, or Correct$entence is therefore DENIED.
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HON. ROGER T. BENITEZ
United States District Judge