Rodriguez-Rodriguez v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Thomas J. Whelan on 2/23/2018.(All non-registered users served via U.S. Mail Service)(jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GABRIEL RODRIGUEZ-RODRIGUEZ,

Case No.: 16-cr-0374-W
17-cv-0513

Petitioner,

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v.

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UNITED STATES OF AMERICA,

ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE [DOC. 29]

Respondent.

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Petitioner Gabriel Rodriguez-Rodriguez, a federal prisoner proceeding pro se, filed

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a motion to vacate, set aside, or correct his sentence pursuant to Title 28, United States

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Code, Section 2255 (the “Petition”). (See Petition [Doc. 29].) Respondent United States

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of America opposes. (See Opp’n [Doc. 39].)
The Court decides the matter on the papers submitted and without oral argument.

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See Civ. L. Rule 7.1(d)(1). For the reasons discussed below, the Court DENIES

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Petitioner’s Petition. [Doc. 29.]

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I.

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BACKGROUND
On or about January 30, 2016, United States Border Patrol agents arrested

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Petitioner, an alien previously removed from the United States, for re-entering the United

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States in violation of 18 U.S.C. § 1326. On February 25, 2016, Petitioner agreed to

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waive indictment to an information charging him with being a removed alien found in the

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United States in violation of 18 U.S.C § 1326(a) and (b). (See Complaint [Doc. 1];

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Waiver of Indictment [Doc. 9].)

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On March 28, 2016, Petitioner plead guilty pursuant to a plea agreement for being
a removed alien found in the United States in violation of 18 U.S.C. § 1326. (See Plea

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Agreement [Doc. 14].1) As part of the plea agreement, Petitioner agreed to waive his

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right to appeal. (See id. at ¶ XI.) On July 5, 2016, this Court sentenced Petitioner to 37

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months in custody followed by two years of supervised release. (See Judgment [Doc.

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22].)

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Petitioner appealed the sentence on October 12, 2016, contending that his trial

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counsel failed to object to certain factors used to determine his sentence, and failed to file

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a notice of appeal pursuant to his request. (See Notice of Appeal [Doc. 23].) The Ninth

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Circuit dismissed the appeal as untimely. (See 1/11/17 Order of USCA [Doc. 27].)

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On March 14, 2017, Petitioner filed the Petition alleging ineffective assistance of

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counsel. On June 6, 2017, Respondent filed a motion for a limited waiver of the

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attorney-client privilege for the purpose of responding to the Petition. (See Mot. [Doc.

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36].) On June 9, 2017, the Court granted Respondent’s motion as it found Petitioner

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waived the attorney-client privilege with respect to claims asserted in the Petition,

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ordered Petitioner’s trial counsel to provide a declaration addressing the claims, and

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issued a new briefing schedule on the Petition. (See Waiver Order [Doc. 37].)

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The Plea Agreement is also attached to Respondent’s Opposition as Exhibit 3 [Doc. 39-3].

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On September 22, 2017, Respondent filed its opposition, including Petitioner’s

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trial counsel’s declaration as an exhibit. On October 16, 2017, Petitioner filed his reply.

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II.

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LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal sentencing court is authorized to discharge or

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re-sentence a defendant if it concludes that “the sentence was imposed in violation of the

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Constitution or laws of the United States, or that the court was without jurisdiction to

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impose such sentence, or that the sentence was in excess of the maximum authorized by

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law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. This statute is

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intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in

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the district of confinement, by providing an equally broad remedy in the more convenient

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jurisdiction of the sentencing court. See United States v. Addonizio, 442 U.S. 178, 185

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(1979); Hernandez v. Campbell, 204 F.3d 861, 864 n.4 (9th Cir. 1999).

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The remedy available under § 2255 is as broad and comprehensive as that provided

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by a writ of habeas corpus. See United States v. Addonizio, 442 U.S. 178, 184-85

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(1979). But this remedy does not encompass all claimed errors in conviction and

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sentencing. Id. at 187. A mere error of law does not provide a basis for collateral attack

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unless the claimed error “resulted in a complete miscarriage of justice or in a proceeding

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inconsistent with the rudimentary demands of fair procedure.” Hamilton v. United

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States, 67 F.3d 761, 763-64 (9th Cir. 1995) (quoting United States v. Timmreck, 441 U.S.

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780, 783-84 (1979)).

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III.

DISCUSSION

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A.

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Petitioner argues that he is entitled to vacate, set aside, or correct his sentence

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because, among other things, his attorney provided ineffective assistance by: (1) failing to

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review the plea agreement with Petitioner; (2) failing to file an appeal; and, (3) failing to

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object to a 12 level sentencing enhancement for a previous state law drug conviction and

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The Petition Lacks Merit.

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the validity of his deportation pursuant to that conviction. 2 (Pet. 5, 14.) Respondent

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argues that Petitioner has failed to establish a valid claim for ineffective assistance of

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counsel. (Opp’n at 4:8-12.)

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A defendant can waive the right to file a §2255 motion if a plea agreement waives

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the right to collateral attack, and the waiver is knowingly and voluntarily made. United

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States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009). However, a defendant has the

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possibility of collaterally attacking his sentence when a §2255 motion is based on

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ineffective assistance of counsel, as it relates to a plea agreement. Middleton v. United

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States, 46 F.3d 1143 at *1 (9th Cir. 1995).

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In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a

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two-prong test to determine whether counsel’s assistance was so defective as to require

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reversal of a conviction. First, petitioner must show that counsel’s performance was

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deficient. Id. at 687. In order to prove deficient performance, petitioner must

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demonstrate that counsel “made errors so serious that counsel was not functioning as the

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‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. In other words,

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petitioner must demonstrate that counsel’s representation fell below an objective standard

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of reasonableness, considering all the circumstances presented in a particular case. Id. at

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688. The Supreme Court further elaborated that there is a “strong presumption that

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counsel’s conduct falls within the wide range of reasonable professional assistance. . . .”

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Id. at 699.

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The second prong of the Strickland test requires petitioner to prove that counsel’s

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deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. In order to

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prove prejudice, petitioner must demonstrate that counsel’s errors were so serious as to

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deprive the defendant of a fair and reliable trial. Id. Otherwise stated, the petitioner must

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Petitioner’s Petition also claims ineffective assistance of counsel for failing to object to a two point
sentencing enhancement due to Petitioner being on probation at the time of the offense. (Pet. 9.)
However, Petitioner concedes this issue in his Reply. (Reply 3.)

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demonstrate that there is a reasonable probability that, but for counsel’s defective

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assistance, the result of the proceeding would have been different. Id. at 694.

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First, Petitioner asserts his attorney failed to communicate the contents of the plea

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agreement with him. (Pet. 14.) Specifically, Petitioner contends the plea agreement was

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not explained to him in Spanish, and therefore he was unaware the agreement waived his

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right to appeal. (Reply 2.) Petitioner’s claim, however, is not consistent with the record.

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Contrary to Petitioner’s claim, his trial counsel has submitted a declaration asserting he

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always reviews plea agreements with his clients, and accordingly reviewed Petitioner’s

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plea agreement with him before submitting it to Respondent. (Rexrode Supplemental

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Decl. [Doc. 39-1] ¶ 2.) Consistent with trial counsel’s declaration, Petitioner

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acknowledged at his change of plea hearing that the plea agreement was read to him in

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Spanish, he understood the contents of the agreement, and he had enough time to discuss

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the agreement with his attorney. (Opp’n, Ex.21 (“Plea Transcript” [Doc. 39-2]) 4:13–

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21.)

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Next, Petitioner claims his counsel was ineffective for failing to file an appeal after

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asking for counsel to do so. (Pet. 5.) In his plea agreement, Petitioner waived all rights to

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appeal, except for a collateral attack based on ineffective assistance of counsel or if the

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court imposed a sentence above the high end of the guideline range. (Plea Agreement

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[Doc. 14] 11:3–9). Petitioner was sentenced to 37 months, which is the low end of the

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guidelines, so Petitioner has no right to appeal based on the length of his sentence.

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(Opp’n, Ex.4 (“Sentencing Transcript” [Doc. 39-4]) 7:12–22.) Further, Petitioner’s trial

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counsel’s declaration states there is no record of Petitioner requesting for him to file an

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appeal, and regardless, his practice is to file a notice of appeal when requested by a client,

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even if the client waived appeal in a plea agreement and the client has been counseled

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against appealing. (Rexrode Decl. [Doc. 39-6] ¶ 2.)

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Finally, Petitioner alleges ineffective assistance based on his counsel’s failure to
contest a 12 level sentencing enhancement for a prior drug trafficking conviction, and for
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not challenging the validity of his deportation pursuant to that conviction. (Pet. 8, 14).

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Petitioner’s trial counsel’s declaration states he reviewed Petitioner’s state conviction for

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possession of a controlled substance for sale, determined it qualified for the 12 level

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enhancement, and determined state records showed the state court twice informed

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Petitioner his plea would result in deportation. (Rexrode Decl. ¶ 2.) Petitioner’s trial

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counsel’s evaluation also determined there was no basis to contest Petitioner’s removal

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from the United States based on due process. (Id.) State records confirm at the time of

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Petitioner’s nolo contendere plea, Petitioner was informed his plea would result in

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deportation. (Opp’n, Ex.7 (“California “Nolo” Plea Transcript” [Doc. 39-7]) 11.)

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As there is no basis to conclude Petitioner’s trial counsel’s conduct fell below an

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objective standard of reasonableness, the Court finds his ineffective assistance of counsel

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claims lack merit. See Strickland, 466 U.S. at 687. Regardless, Petitioner’s claim

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attacking the sentencing levels and validity of his deportation are not valid claims for

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ineffective assistance in a §2255 motion. Petitioner was advised of the maximum

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sentence he could face under the plea agreement, and as previously determined, entered

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that agreement knowingly and voluntarily with effective assistance of counsel.

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Petitioner’s claims attacking the factors contributing to his sentence therefore are the sort

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of collateral attacks prohibited by his plea agreement. Because Petitioner entered the plea

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agreement knowingly and voluntarily, and waived his right to appeal or challenge his

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sentence, this Court lacks jurisdiction to consider any collateral challenge to his

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conviction and sentence. See United States v. Harris, 628 F.3d 1203, 1207 (9th Cir.

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2011) (recognizing that if sentencing stipulation’s waiver of the right to appeal was valid,

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the court need not consider Petitioner’s remaining claims).

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IV.

CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Petitioner’s § 2255 motion to

vacate, set aside, or correct his sentence [Doc. 29].
IT IS SO ORDERED.
Dated: February 23, 2018

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