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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE LUIS MENDOZA-CARDENAS,
v.

Petitioner,

UNITED STATES OF AMERICA,
Respondent.

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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

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sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 26.)

Petitioner pled guilty to

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importation of methamphetamine in violation of 21 U.S.C. §§ 952, 960 and was

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sentenced to fifty months imprisonment. (Dkt. Nos. 18, 24.) In his § 2255 motion,

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Petitioner asserts that a policy making certain rehabilitative programs available only to

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United States citizens violates the equal protection and due process clauses of the Fifth

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and Fourteenth Amendments because Petitioner is denied the opportunity to reduce his

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sentence through participation in those programs. Petitioner, however, waived his right

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to appeal or collaterally attack his judgment and sentence. (Dkt. Nos. 18, 24.)

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A knowing and voluntary waiver of a statutory right is enforceable. United States

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v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to collaterally attack

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a sentence pursuant to 28 U.S.C. § 2255 is statutory in nature, and a defendant may

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therefore waive the right to file a § 2255 motion. See, e.g., United States v. Abarca, 985

11cv2994/11cr3499

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F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering plea agreement whereby

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defendant waived right to appeal his sentence, defendant relinquished right to directly or

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collaterally attack his sentence on the ground of newly discovered exculpatory evidence).

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The scope of a § 2255 waiver may be subject to potential limitations. For example,

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a defendant’s waiver will not bar an appeal if the trial court did not satisfy certain

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requirements under Federal Rule of Criminal Procedure 11 to ensure the waiver was made

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knowingly and voluntarily. Navarro-Botello, 912 F.2d at 321. Such a waiver might also

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be ineffective where the sentence imposed is not in accordance with the negotiated

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agreement or violates the law. Id.; United States v. Littlefield, 105 F.3d 527, 528 (9th

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Cir. 1996). Additionally, a waiver may be “unenforceable” and may not “categorically

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foreclose” a defendant from bringing § 2255 proceedings where a petitioner claims

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ineffective assistance of counsel with regard to whether such a waiver was made knowingly

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and voluntarily. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005); Abarca,

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985 F.2d at 1014; see also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992).

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Petitioner does not assert this Court failed to satisfy the requirements under Federal

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Rule of Criminal Procedure 11 to ensure Petitioner knowingly and voluntarily waived his

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right to directly or collaterally attack his conviction and sentence. Petitioner does not

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claim his sentence was not in accordance with the negotiated plea agreement or that his

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sentence violates the law. Petitioner does not claim ineffective assistance of counsel with

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regard to the knowing and voluntary nature of his waiver. Indeed, Petitioner does not

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assert that his waiver was not knowing or voluntary. Because the instant § 2255 motion

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is a collateral attack on Petitioner’s sentence, it falls within the parameters of Petitioner’s

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waiver and must be denied. Accordingly, IT IS HEREBY ORDERED Petitioner’s motion

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is DENIED.

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Dated: April 12, 2012

_______________________________
JOHN A. HOUSTON
United States District Judge

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11cv2994/11cr3499