Chavarria Perez v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Jeffrey T. Miller on 7/1/2014.(All non-registered users served via U.S. Mail Service)(vam)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

CASE NO. 13cr913 JM
CIVIL NO. 14cv1425 JM

Plaintiff,

vs.

ORDER DENYING MOTION
BROUGHT PURSUANT TO 28
U.S.C. §2255

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JOSE CHAVARRIA PEREZ,
Defendant.

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On July 24, 2013, pursuant to a plea agreement, Defendant Jose Chavarria Perez

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(“Defendant”), a non-United States citizen, pleaded guilty to a single-count information

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charging Defendant with importation of approximately 1331 kilograms of marijuana

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in violation of 21 U.S.C. §§ 952, 960 and 18 U.S.C. § 2 . On February 6, 2014, the

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court sentenced Defendant to 70 months custody. On or about June 9, 2014, Defendant

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filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255

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(“Motion”). As the sole ground for Defendant’s Motion, Defendant indicates he has

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“just learned of federal law that would allow [him] to apply for citizenship in the

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United States of America” and “he would like to apply and become a citizen of this

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country.” (Motion at 3). For the reasons set forth below, the court summarily

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dismisses the Motion.

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Claims for relief under 28 U.S.C. § 2255 must be based on a constitutional error,
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a jurisdictional error, a defect resulting in a miscarriage of justice, or an unfair

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procedure. 28 U.S.C. § 2255(a); United States v. Timmreck, 441 U.S. 780, 783-84

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(1979). Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, “[i]f it

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plainly appears from the motion, any attached exhibits, and the record of prior

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proceedings that the moving party is not entitled to relief, the judge must dismiss the

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motion and direct the clerk to notify the moving party.” The court does not need to hold

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an evidentiary hearing or obtain a response from the government. See 28 U.S.C. §

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2255; United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).

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“As a general rule, ‘[28 U.S.C.] § 2255 provides the exclusive procedural

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mechanism by which a federal prisoner may test the legality of detention.’” Harrison

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v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (quoting Lorentsen v. Hood, 223 F.3d

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950, 953 (9th Cir. 2000)). “Section 2255 allows a federal prisoner claiming that his

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sentence was imposed ‘in violation of the Constitution or laws of the United States’ to

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‘move the court which imposed the sentence to vacate, set aside or correct the

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sentence.’” Id. (quoting 28 U.S.C. § 2255). While recognizing Defendant’s desire to

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become a United States citizen, Section 2255 is not the proper avenue for pursuing

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citizenship in this country. Nor does Defendant’s current request to become a United

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States citizen have any relationship to the legality of his imposed sentence. The

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Motion does not contain any allegations of constitutional error, jurisdictional error,

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defect resulting in a miscarriage of justice, or unfair procedure related to his sentence

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such that relief would be warranted under Section 2255.

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Moreover, Defendant waived his right to collaterally attack his sentence.

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Contract law standards govern the validity of plea agreements. United States v. Keller,

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902 F.2d 1391, 1393 (9th Cir. 1990). A defendant validly waives his appellate rights

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if the language of the waiver encompasses his right to appeal on the grounds raised and

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he knowingly and voluntarily agrees to waive those rights. United States v. Rahman,

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642 F.3d 1257, 1259 (9th Cir. 2011). A waiver provision barring a defendant from

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seeking collateral relief under a Section 2255 motion is valid and enforceable. See
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United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see United States v.

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Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990) (reasoning the public policy of

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finality supports upholding waivers in plea agreements). Defendant validly waived his

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right to collaterally attack his sentence when he executed a plea agreement expressly

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waiving his right to appeal or to collaterally attack his conviction and sentence unless

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the court imposed a custodial sentence greater than the high end of the guideline range

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recommended by the government. The waiver applies because, at sentencing, the court

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imposed a sentence less than the recommended guideline range recommended by the

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Government. The record reveals that Defendant’s waiver was knowing and voluntary.

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Accordingly, the court denies the Motion in its entirety. The Clerk of Court is

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instructed to close the file.
IT IS SO ORDERED.
DATED: July 1, 2014
Hon. Jeffrey T. Miller
United States District Judge

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