Opinion
No. 2:14-cr-00326 JAM GGH
11-13-2020
UNITED STATES OF AMERICA, Plaintiff, v. RIGOBERTO CECENA Movant.
FINDINGS AND RECOMMENDATIONS
Introduction and Summary
Movant entered into a plea agreement, which in part, with exceptions not applicable here, waived any appeal or collateral proceeding with respect to attacking his conviction or sentence. He challenges his sentence in this 28 U.S.C. § 2255 proceeding as being unfair when compared to the sentences of his co-defendants. ECF No. 124. He also brings sundry other claims with respect to his sentence. It might be added, that at the time of his judgment and sentencing which effected the waiver, movant was aware of his co-defendant's sentences. Moreover, movant is untimely in bringing this Section 2255 motion. For these reasons, movant's Section 2255 motion should be denied. //// ////
Factual Background
Movant pled guilty to Count 1 of the Superseding Information (Possession with Intent to Distribute at least 50 grams of methamphetamine). ECF Nos. 70, 72. Judgment was accordingly entered on February 21, 2017. ECF No. 113. Movant was sentenced to federal prison for a total term of 148 months. ECF No. 113 at 2. The plea agreement underlying the conviction and sentence provided that defendant understood that a maximum sentence could be imposed, and that movant would not be permitted to withdraw his plea at a later time simply because he was unhappy with the sentence imposed. ECF No. 71 at 2. Movant was not permitted to argue for a sentence less than 60 months, id. , and the government recommended that movant be incarcerated for 168 months. ECF No. 94, 109.
The plea agreement contained the following waiver of appeal and collateral attack on the conviction/sentence:
B. Waiver of Appeal and Collateral AttackECF No. 71 at 8.
The defendant understands that the law gives the defendant a right to appeal his guilty plea, conviction, and sentence. The defendant agrees as part of his plea/pleas, however, to give up the right to appeal the guilty plea, conviction, and the sentence imposed in this case as long as the sentence does not exceed 210 months. The defendant specifically gives up the right to appeal any order of restitution the Court may impose.
Notwithstanding the defendant's waiver of appeal, the defendant will retain the right to appeal if one of the following circumstances occurs: (1) the sentence imposed by the District Court exceeds the statutory maximum; and/or (2) the government appeals the sentence in the case. The defendant understands that these circumstances occur infrequently and that in almost all cases this Agreement constitutes a complete waiver of all appellate rights.
In addition, regardless of the sentence the defendant receives, the defendant also gives up any right to bring a collateral attack, including a motion under 28 U.S.C. § 2255 or § 2241, challenging any aspect of the guilty plea, conviction, or sentence, except for non-waivable claims.
Despite his agreement not to appeal, movant appealed anyway. The Ninth Circuit upheld the waiver of appeal and held: "Contrary to Cecena's contention, the district court's failure to impose a lower sentence in light of the sentence received by Cecena's codefendant does not render his sentence illegal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) ('A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution.')" ECF No. 122.
Discussion
A. Movant's Section 2255 Motion is Barred by Waiver
Movant's Section 2255 motion is barred, not only by the terms of the plea agreement itself, but also by principles of law of the case. Law of the case forbids relitigation by a lower court of a higher court's ruling absent a change in the law or manifest injustice. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) ("Under the law of the case doctrine, a court will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case."). There has been no change in the law applicable to movant's waiver of collateral attack, and there has been no manifest injustice. Indeed, there could not be in this case because the Ninth Circuit upheld the "waiver" section of the plea agreement. There are simply no distinguishing facts which could differentiate the validity of the waiver of appeal from the waiver of Section 2255 collateral attack.
Movant presently has pending a request for resentencing pursuant to the First Step Act. That proceeding is independent of this present Section 2255 motion, and the outcome here is not affected by the First Step Act.
Related to the above is the principle that a litigant is not permitted to raise in a new Section 2255 proceeding an issue that has been decided adversely to him on direct appeal, United States v. Scriviner, 189 F.3d 925, 928 (9th Cir. 1999), or should have been raised on direct appeal. Bousley v.United States, 523 U.S. 614, 622 (1998). The same issue movant raised on appeal, he raises here in Claims 2, 3, 4 (variations on the same theme): My sentence was unfair because my co-defendants received lesser sentences than I did, and the Sentencing Guidelines were applied incorrectly. These issues either were raised on direct review or were all subject to being raised on direct review.
Claim 2—Illegal Sentence; Claim 3—Ambiguous Plea Agreement; Claim 4—Defendant's Constitutional Rights Violated.
Movant could avoid this procedural default by showing cause and prejudice. Bousley, supra. Movant's repeated conclusion that he was unaware of his appellate rights and that there was newly discovered evidence goes no distance in meeting his burden
Finally, even if the undersigned were to review the issue of collateral attack waiver for manifest injustice de novo, the same result would be obtained. At the time of sentencing, petitioner already knew the outcome of his co-defendant's sentencings. Movant was aware of one co-defendant's plea agreement prior to the time movant entered into his plea agreement. See footnote 2. He knew at time of sentencing that he stood a good chance of receiving more incarceration time than both co-defendants by the very terms of his plea agreement. Yet, he adhered to the plea bargain. There is nothing unfair about upholding the plea bargain.
With respect to co-defendant Valenzuela-Herrera, the plea agreement, in which the government would recommend time served was filed on January 15, 2016. ECF No. 58. Co-defendant Valenzuela-Herrera was sentenced to time served on April 22, 2016. ECF No. 86. In the government's plea agreement with co-defendant Perez, filed April 22, 2016, the government agreed to recommend sentence at the low end of the Guidelines. ECF 84 at 4. On December 16, 2016, co-defendant Perez was sentenced to 48 months. ECF No. 118.
Movant's guilty plea where he agreed to waiver was on March 18, 2016, ECF No. 72—which was made two months after Valenzuela-Herrera' agreement. While Perez's agreement was filed a month after movant's, Perez' sentencing took place prior to movant's sentencing on February 10, 2017. ECF No. 111. At the time of movant's sentencing, movant personally addressed the judge, but never said at his sentencing that he believed he had been treated unfairly because of lower plea agreement recommendations to the other defendants by the government. ECF No. 115 at 7-8. His attorney made the argument that movant should not be treated more harshly than the co-defendants. Id. at 3-7. However, there was no request to withdraw movant's guilty plea; no request was made to upset the plea agreement.
However, waivers of direct appeal and collateral attack are not absolute. If the waiver was obtained by markedly deficient advice from one's attorney, the waiver would be ineffective. Lafler v. Cooper, 566 U.S. 156 (2012); Washington v. Lambert, 422 F.3d 864 (9th Cir. 2005). Petitioner has not come close here. By simply uttering the phrase of an attorney's "deficient performance" or similar conclusions, without more, petitioner cannot overturn the waiver of appeal/collateral attack. Petitioner must make good faith, factually specific assertions, on the merits that his counsel was constitutionally ineffective in advising him about the plea. United States v. Roberson, No. CR S-02-0364 WBS, 2008 WL 4966207, at*1 (E.D. Cal. Nov. 20, 2008) (cases cited therein).
In the petition, the sum total of ineffective assistance allegations (Claim 1) are as follows:
Defendant's Sixth Amendment rights were clearly violated by the representation provided by the United States Public Defender's office through the ineffective or deficient representation which fell below an objective standard of reasonableness. It is evident that counsel's deficient performance prejudiced the defendant.ECF No. 124 at 4.
This claim was nearly identically reprised as a tag line for Claim 2.
No traverse was filed. Claim 1 is without merit.
B. The Section 2255 Motion Is Time Barred
As set forth in the United States' opposition, the appeal in this case was decided on October 2, 2017. Petitioner had 90 days from that date in which to seek certiorari in the U.S. Supreme Court. Pursuant to 28 U.S.C. § 2255(f), a one-year statute of limitations commences to run from the expiration of the 90-day period—here, January 18, 2018. United States v. Garcia, 200 F.3d 1958 (9th Cir. 2000). Movant filed his Section 2255 motion on May 11, 2020. The Section 2255 motion is accordingly untimely.
The time to seek certiorari runs from when the appellate judgment is entered, not from the time the mandate is issued. United States v. Garcia, 210 F.3d 1958 (n.6) (9th Cir. 2000).
There might be situations where movant's time in which to file a Section 2255 motion would be equitably tolled. United States v. Gilbert, 807 F.3d 1197 (9th Cir. 2015). However, those situations must be extraordinary, id. at 1202, and movant makes no such showing here. Instead, movant repeats for each claim that he "was unaware of his appellate rights and newly discovered evidence became available." ECF No. 124 at 5. Of course, movant appealed, and this part of the statement makes no sense. Movant does not relate at all what the "newly discovered evidence" might be. Moreover, footnote 4 of this Findings and Recommendations demonstrates that there was no surprise to movant in what transpired in terms of his co-defendants' sentences.
Accordingly, the Section 2255 motion is untimely.
Certificate of Appealability
A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Based on the reasons set forth above, movant has not made a showing that jurists of reason would find it debatable whether this court was incorrect in its findings and recommendations. Accordingly, a certificate of appealability should not issue in this action.
Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Movant's 28 U.S.C. § 2255 motion, ECF No. 124 should be dismissed with prejudice; and
2. The district court decline to issue a certificate of appealability as referenced in 28 U.S.C. § 2253.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991). Dated: November 13, 2020
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE