Gonzalez v. USA

Filing 8

ORDER denying 6 Motion to Expand the Record filed in CV 11-841-TUC-DCB. Further ordered that Petitioner's Motion to Vacate, Set Aside or Correct Sentence in CR 10-294-TUC-DCB and CV 11-841 TUC-DCB is denied. Further ordered that the civil case is dismissed with prejudice, Clerk of the Court shall enter judgment as to Juan Carlos Gonzalez (1). Signed by Judge David C Bury on March 22, 2012. (BAR)

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1 WO 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 ) ) ) Petitioner, ) v. ) ) United States of America, ) ) Respondent. ) _______________________________________ ) Juan Carlos Gonzalez, CR 10-1294 TUC-DCB(HCE) CV 11-0841 TUC-DCB ORDER 14 15 Pending before this Court is Petitioner's "Motion Pursuant to 28 U.S.C. § 2255 to 16 Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" (Petition). The 17 Petitioner alleges ineffective assistance of counsel because his attorney advised him to 18 enter into a plea agreement, which included a waiver of “his due process” right to appeal. 19 Petitioner also asserts that his attorney was ineffective at sentencing because he failed to 20 object to a 12-level sentencing enhancement for a prior conviction for a felony drug 21 trafficking offense. Petitioner argues his prior conviction was a misdemeanor. 22 Petitioner’s Plea Agreement contained a waiver of all appellate rights, which bars 23 relief pursuant to 28 U.S.C.A. § 2255 in all but the most narrow cases of ineffective 24 assistance of counsel. In an abundance of caution because the Petitioner is pro se, the 25 Court called for a Response. The Government has filed its Response, and for all the 26 reasons stated therein, the Court dismisses this action without a hearing. The 27 Government also seeks to expand the record to introduce judicially noticeable documents 28 1 related to Petitioner’s prior conviction. Expansion of the record is unnecessary, and the 2 Court denies the Government’s motion. 3 A. Conviction and Sentence On December 28, 2010, Petitioner pled guilty, pursuant to a Plea Agreement, to 4 5 illegal re-entry after deportation in violation of 8 U.S.C.A. § 1326, enhanced by 6 subsection (b)(2). The factual basis for the Plea Agreement included Petitioner’s 7 admission that he had been convicted of possession of a controlled substance for sale, an 8 aggravated felony, on December 30, 2009, and had been sentenced to 180 days in jail and 9 3 years supervised release. The Presentence Report (PSR) reflected the conviction was 10 for a violation of California Health and Safety Code § 11378, Possession of a Controlled 11 Substance for Sale (felony). The PSR specified that the police report for the California 12 offense reflected the defendant was found with 29.2 grams of methamphetamine. 13 Petitioner did not object at the time of sentencing to the fact of the conviction or that the 14 drug offense was for methamphetamine. In his Petition he states he “entered a guilty plea 15 to ‘simple possession’ of methamphetamine, a California state misdemeanor under 16 California Health and Safety Code and was sentenced to 180 days of incarceration. 17 Petitioner served less than three months in the Los Angeles County Jail and was then 18 deported.” (Doc. 54: Petition at 2.)1 Petitioner charges his attorney mischaracterized the 19 offense as a felony when it was a misdemeanor. At his plea hearing, however, Petitioner admitted to the Magistrate Judge that as 20 21 stated in the Plea Agreement he had been previously convicted of possession of a 22 controlled substance for sale, an aggravated felony, and sentenced to 180 days in jail. 23 The Petitioner admitted the same, again, before this Court at the time of sentencing. 24 On May 24, 2011, the Court sentenced the Petitioner, pursuant to the Plea Agreement, to 25 24 months imprisonment to be followed by 3 years supervised release. (Doc. 50: 26 27 28 1 Document numbers refer to the Clerk's Record in the criminal case. 2 1 Judgment and Commitment.) Petitioner was sentenced below the guideline range of 30 to 2 37 months imprisonment because the Government asked for a three-level downward 3 departure for acceptance of responsibility, pursuant to U.S.S.G. § 5K3.1. The Court 4 applied a 12-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(B), based on 5 Petitioner’s admission in the Plea Agreement to a prior conviction for a felony drug 6 trafficking offense for which the sentence imposed was 13 months or less. The Plea 7 Agreement contained a waiver of Petitioner’s right to appeal and collaterally attack his 8 sentence and conviction in exchange for the benefit of the Government making the § 9 5K3.1 motion to grant the Petitioner three points for acceptance of responsibility. 10 11 12 13 14 15 16 B. 28 U.S.C. § 2255: Plea Agreement Waiver of Right to Appeal. Title 28 of the United States Code, Section 2255 provides for collateral review of Petitioner's sentence as follows: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. 17 28 U.S.C. § 2255. 18 The right to petition for relief under 28 U.S.C. § 2255, like the right to bring a 19 direct appeal, is statutory. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992) 20 (citing see Abney v. United States, 431 U.S. 651, 656 (1977) ("The right of appeal, as we 21 presently know it in criminal cases, is purely a creature of statute....")). Like the waiver 22 of the right to a direct appeal, a knowing and voluntary waiver of rights under 28 U.S.C. § 23 2255 is enforceable. Id. (citing United States v. Navarro-Botello, 912 F.2d 318, 321(9th 24 Cir.1990)). Upon review of the record in this case, it appears that the Petitioner was 25 sentenced pursuant to a Plea Agreement containing an express waiver of all appeal 26 rights, direct and collateral. (Document 28: Plea Agreement at ¶ 1-2.) 27 28 3 The Petitioner signed the Plea Agreement stating that he had discussed the terms 1 2 with his attorney, that he agreed to the terms and conditions, which included the waiver of 3 his right to appeal, and that he voluntarily and knowingly entered into the Plea 4 Agreement. (Plea Agreement at 6.) This Court's sentencing colloquy fully complies with 5 Fed. R. Cr. P. 11, including an inquiry into the voluntariness of any plea agreement, gives 6 notice to the defendant if the plea agreement contains a waiver of appellate rights and 7 inquires into the voluntariness of the waiver. Plea agreements are contractual in nature and their plain language will generally 8 9 be enforced if the agreement is clear and unambiguous on its face. United States v. 10 Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). For example, an express waiver of 11 appellate rights is enforceable if the language of the waiver encompasses the right to 12 appeal on the grounds raised and the waiver is knowingly and voluntarily made. Id. A defendant may waive the statutory right to bring a § 2255 action challenging 13 14 the length of his sentence, United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); 15 Abarca, 985 F.2d at1014. The only claims that cannot be waived are that the waiver itself 16 was involuntary or that ineffective assistance of counsel2 rendered the waiver involuntary. 17 2 27 The Supreme Court enunciated the standards for judging a criminal defendant's contention that the Constitution requires a conviction to be set aside because counsel's assistance at trial was ineffective in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. To this end, the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 688-90. Second, the defendant must affirmatively prove prejudice. Id. at 691-92. He must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In other words, to prevail on a claim of ineffective assistance, the Petitioner must show both that his counsel's performance was deficient and that this prejudiced his case. Strickland, 466 U.S. at 688. 28 4 18 19 20 21 22 23 24 25 26 1 See Pruitt, 32 F.3d at 433 (expressing “doubt” that a plea agreement could waive a claim 2 that counsel erroneously induced a defendant to plead guilty or accept a particular part of 3 the plea bargain), Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver 4 forecloses a claim of ineffective assistance or involuntariness of the waiver); see also 5 Jeronimo, 398 F.3d at 1156 n.4 (summarizing Pruitt and Abarca, but declining to decide 6 whether waiver of all statutory rights included claims implicating the voluntariness of the 7 waiver). Petitioner does not dispute that this Court and the Magistrate Judge explained the 8 9 sentencing aspects of the Plea Agreement to him and explained the waiver of rights 10 provision to him as well. Petitioner does not charge his attorney was ineffective in 11 translating the Plea Agreement from English into Spanish for him or explaining the 12 details of the Plea Agreement to him. Petitioner charges his attorney gave him bad advise 13 to enter into the Plea Agreement for two reasons: 1) the Plea Agreement contained a 14 waiver of his appellate rights and 2) the factual basis for the Plea Agreement contained 15 his admission that he was convicted of a prior aggravated felony for a drug trafficking 16 offense. 17 Conclusion. 18 In summary, where a defendant pleads guilty, he can only complain that his 19 attorney was ineffective in some way that affected the voluntariness of his plea, which 20 would include pleading guilty in reliance on his attorney’s “gross mischaracterization” of 21 the likely outcome of his case. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 22 2005), overruled on other grounds, United States v. Jacobo Castillo, 496 F.3d 947, 957 23 (9th Cir. 2007) (en banc). Misrepresentation or an erroneous prediction concerning 24 sentencing does not entitle a defendant to challenge his guilty plea. Id., United States v. 25 Michlin, 34 F.3d 896, 899 (9th Cir. 1994). Where the plea agreement is binding, the only 26 27 28 5 1 claim that cannot be waived is that the waiver itself was not knowing or voluntary, 2 including a claim that ineffective assistance of counsel rendered the waiver involuntary. 3 Pruitt, 32 F.3d at 433; Abarca, 985 F.2d at 1014. 4 Petitioner’s only claim which could arguably fit these exceptions is that his 5 attorney advised him that the prior California conviction for violating § 11378 was an 6 aggravated felony drug trafficking offense for sentencing purposes when it was a mere 7 misdemeanor “simple possession” charge that did not warrant a 12-level sentencing 8 enhancement under U.S.S.G. § 2.L1.2. 9 The Court does not reach Petitioner’s assertion that such bad advise would be a 10 “gross mischaracterization,” to support a claim of ineffective assistance of counsel to 11 defeat the voluntary or intelligent nature of his plea. See Tollett v. Henderson, 411 U.S. 12 258, 267 (1973) (when a defendant has solemnly admitted in open court to in fact being 13 guilty of an offense, he may not thereafter raise independent claims relating to 14 deprivations of constitutional rights that occurred prior to the entry of the guilty plea.) 15 The Court does not need to consider this argument because Petitioner is wrong when he 16 asserts his prior California state conviction was a misdemeanor. 17 Petitioner’s conviction was for a violation of California Health and Safety Code § 18 11378, which provides that every person who possesses for sale any controlled substance 19 which is classified in California’s Schedule III, IV, or V, and not expressly excepted 20 under the California Code, shall be punished by imprisonment pursuant to subsection h of 21 California’s Penal Code § 1170. The Ninth Circuit has previously noted that California 22 law regulates the possession and sale of numerous substances that are not similarly 23 regulated by the federal Controlled Substance Act. Ruiz-Vidal v. Gonzales, 473 F.3d 24 1072, 1078 (9th Cir. 2007). This case law is of no assistance to the Petitioner because 25 methamphetamine is a drug listed in the federal Controlled Substance Act. (21 U.S.C.A. 26 812(c), Schedule III (a)(3). The U.S.S.G. § 2L1.2, Application Note 1(B)(iv) defines a 27 28 6 1 ‘drug trafficking offense as: “an offense under federal, state, or local law that prohibits 2 the manufacture, import, export, distribution, or dispensing of a controlled substance . . . 3 or the possession of a controlled substance . . . with intent to manufacture, import, export, 4 distribute, or dispense.” (Emphasis added.) 5 The Court turns directly to Petitioner’s argument that his offense conviction was 6 a simple possession misdemeanor and not a felony. The offense of conviction, § 11378, 7 requires punishment by imprisonment, pursuant to subsection h of California Penal Code 8 § 1170(h). “[A] felony punishable pursuant to this subdivision where the term is not 9 specified in the underlying offense shall be punishable by a term of imprisonment in a 10 county jail for 16 months, or two or three years.” Calif. Penal Code § 1170(h)(1). Under 11 U.S.S.G. § 2L1.2, Application Note 2, felony means “any federal, state, or local offense 12 punishable by imprisonment for a term exceeding one year.” Petitioner’s California 13 conviction for § 11368, a drug trafficking offense, is a felony as defined for sentencing 14 purposes. 15 Under § 2L1.2(b)(1)(B) “a conviction for a felony drug trafficking offense for 16 which the sentence imposed was 13 months or less, increase[s] [the offense characteristic] 17 by 12 levels.” Petitioner was sentenced to 180 days in jail for the California conviction, 18 therefore, the Petitioner’s attorney properly characterized the prior conviction as a felony 19 and subject to a 12-level sentencing enhancement. 20 A review of the record reflects that the Petitioner was informed of and 21 understood the Plea Agreement and that he voluntarily and knowingly agreed to its terms 22 and conditions, including its waiver of his appeal rights. Petitioner expressly waived his 23 right to file a Petition under 28 U.S.C. § 2255, which bars this action. 24 A hearing shall not be granted because the Petitioner’s allegations, when viewed 25 against the record, do not state a claim for relief and are so patently frivolous as a matter 26 27 28 7 1 of law as to warrant summary dismissal. United States v. Schaflander, 743 F.2d 714, 717 2 (9th Cir. 1985). 3 Accordingly, 4 IT IS ORDERED that the Government’s Motion to Expand the Record (Doc. 6) 5 filed in CV 11-841 TUC DCB is DENIED. 6 IT IS FURTHER ORDERED that Petitioner's Motion Under 28 U.S.C. § 2255 7 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, (Doc. 54) filed 8 in CR 10-1294 TUC DCB and (Doc. 1) filed in CV 11-841 TUC DCB is DENIED. 9 10 11 12 IT IS FURTHER ORDERED that civil case number CV 11-841 TUC-DCB is DISMISSED with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. 13 IT IS FURTHER ORDERED, pursuant to Rule 11(a) of the Rules Governing 14 Section 2255 Cases, in the event Petitioner files an appeal, the Court declines to issue a 15 certificate of appealability because reasonable jurists would not find the district court's 16 assessment of the constitutional claims debatable or wrong." United States v. Martin, 226 17 F.3d 1042, 1046 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)), see 18 also 28 U.S.C. § 2253 and FRAP 22(b). 19 DATED this 22nd day of March, 2012. 20 21 22 23 24 25 26 27 28 8

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