Mendoza-Cardenas v. USA

Filing 2

ORDER Denying Petition to Vacate, set aside, or correct sentence. Signed by Judge John A. Houston on 4/12/12.(All non-registered users served via U.S. Mail Service)(ecs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOSE LUIS MENDOZA-CARDENAS, v. Petitioner, UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) Civil No. 11-cv-2994-JAH Crim. No. 11-cr-3499-JAH ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE On December 21, 2011, Petitioner filed a motion to vacate, set aside, or correct his 17 sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 26.) Petitioner pled guilty to 18 importation of methamphetamine in violation of 21 U.S.C. §§ 952, 960 and was 19 sentenced to fifty months imprisonment. (Dkt. Nos. 18, 24.) In his § 2255 motion, 20 Petitioner asserts that a policy making certain rehabilitative programs available only to 21 United States citizens violates the equal protection and due process clauses of the Fifth 22 and Fourteenth Amendments because Petitioner is denied the opportunity to reduce his 23 sentence through participation in those programs. Petitioner, however, waived his right 24 to appeal or collaterally attack his judgment and sentence. (Dkt. Nos. 18, 24.) 25 A knowing and voluntary waiver of a statutory right is enforceable. United States 26 v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to collaterally attack 27 a sentence pursuant to 28 U.S.C. § 2255 is statutory in nature, and a defendant may 28 therefore waive the right to file a § 2255 motion. See, e.g., United States v. Abarca, 985 11cv2994/11cr3499 1 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering plea agreement whereby 2 defendant waived right to appeal his sentence, defendant relinquished right to directly or 3 collaterally attack his sentence on the ground of newly discovered exculpatory evidence). 4 The scope of a § 2255 waiver may be subject to potential limitations. For example, 5 a defendant’s waiver will not bar an appeal if the trial court did not satisfy certain 6 requirements under Federal Rule of Criminal Procedure 11 to ensure the waiver was made 7 knowingly and voluntarily. Navarro-Botello, 912 F.2d at 321. Such a waiver might also 8 be ineffective where the sentence imposed is not in accordance with the negotiated 9 agreement or violates the law. Id.; United States v. Littlefield, 105 F.3d 527, 528 (9th 10 Cir. 1996). Additionally, a waiver may be “unenforceable” and may not “categorically 11 foreclose” a defendant from bringing § 2255 proceedings where a petitioner claims 12 ineffective assistance of counsel with regard to whether such a waiver was made knowingly 13 and voluntarily. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005); Abarca, 14 985 F.2d at 1014; see also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992). 15 Petitioner does not assert this Court failed to satisfy the requirements under Federal 16 Rule of Criminal Procedure 11 to ensure Petitioner knowingly and voluntarily waived his 17 right to directly or collaterally attack his conviction and sentence. Petitioner does not 18 claim his sentence was not in accordance with the negotiated plea agreement or that his 19 sentence violates the law. Petitioner does not claim ineffective assistance of counsel with 20 regard to the knowing and voluntary nature of his waiver. Indeed, Petitioner does not 21 assert that his waiver was not knowing or voluntary. Because the instant § 2255 motion 22 is a collateral attack on Petitioner’s sentence, it falls within the parameters of Petitioner’s 23 waiver and must be denied. Accordingly, IT IS HEREBY ORDERED Petitioner’s motion 24 is DENIED. 25 Dated: April 12, 2012 _______________________________ JOHN A. HOUSTON United States District Judge 26 27 28 2 11cv2994/11cr3499

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