Opinion
No. 2:12-cr-0437 TLN CKD P
02-28-2017
UNITED STATES OF AMERICA, Respondent, v. DEQUAN PATTERSON, Movant.
FINDINGS AND RECOMMENDATIONS
Movant is a United States prisoner proceeding pro se with a motion attacking his sentence under 28 U.S.C. § 2255. ECF No. 122. On January 8, 2015, movant plead guilty to bank robbery in this action, and admitted that he had violated the terms of supervised release in 2:12-cr-0436 TLN. ECF No. 108 & 111. In exchange for his plea and admission, respondent agreed to recommend that movant be sentenced to consecutive terms of 72 months imprisonment for bank robbery, and 24 months for the supervised release violation. ECF No. 111. This is in fact the sentence movant received on May 21, 2015. ECF No. 116.
Movant argues that the trial court should have decreased the "Total Offense Level" applicable at sentencing in this action by two levels under United States Sentencing Guidelines § 3B1.2(b) because, according to movant, he was a minor participant in the bank robbery. However, movant entered into a negotiated plea agreement with the government, a condition of which was that he not challenge his sentence through a § 2255 motion. The Ninth Circuit has found that a waiver of the right to file a § 2255 motion made pursuant to plea negotiations is enforceable except with respect to a claim that the waiver or plea was involuntary or that ineffective assistance of counsel renders the plea or waiver involuntary. See Washington v. Lambert, 422 F.3d 864, 870-71 (9th Cir. 2005) (plea agreement waiving the right to file a federal habeas petition is unenforceable with respect to an ineffective assistance of counsel claim challenging voluntariness of the waiver). Movant fails to argue, or point to facts suggesting, that any part of his plea or waiver of his right to file a § 2255 motion was involuntary. Further, he does not allege he was subjected to ineffective assistant of counsel in any respect during the plea process.
Because it is clear that, in his plea agreement, movant waived his rights to bring the claim he now presents, the court will recommend that movant's § 2255 motion be denied. The court need not address the other arguments raised in respondent's opposition.
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Movant's August 10, 2016 motion attacking his sentence under 28 U.S.C. § 2255 (ECF No. 122) be denied; and
2. The Clerk of the Court be directed to close the companion civil case, No. 2:16-cv-1890 TLN CKD P.
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." In his objections, movant may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any response 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 waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: February 28, 2017
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1
patt0437.257