Bautista Manzo v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 4/3/17.(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 CASE NO. 16cr638-LAB-1 and 17cv619-LAB Plaintiff, vs. ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 13 SERGIO BAUTISTA MANZO, 14 Defendant. 15 16 17 Defendant Sergio Bautista Manzo pled guilty to one count of importation of marijuana 18 and was sentenced to 30 months’ imprisonment followed by three years’ supervised release. 19 Under his plea agreement, he waived any right to appeal and collateral attack his conviction, 20 except for a collateral attack based on a claim of ineffective assistance of counsel. (Docket 21 no. 17 at 11:12–16.) 22 Bautista Manzo did not file an appeal, but he he filed a motion to vacate his 23 conviction, under 28 U.S.C. § 2255. He is not challenging the voluntariness of his plea, or 24 his counsel’s effectiveness in advising him or allowing him to plead guilty. Instead, he argues 25 that his Fifth Amendment rights were violated when he was questioned at the border. He 26 argues that his confession was involuntary and thus inadmissible, and that his counsel was 27 ineffective for failing to make that argument. He also contends his counsel should have 28 pointed out inconsistencies in the prosecution’s case. -1- 16cv638 and 17cv619 1 Bautista Manzo’s guilty plea waived all those alleged defects. United States v. Davis, 2 452 F.2d 577, 578 (9th Cir. 1971) (“[A] plea of guilty admits all averments of fact in the 3 indictment, all defects not jurisdictional are cured, all defenses are waived and the 4 prosecution is relieved from the duty of proving any facts.”). Furthermore, his counsel was 5 not ineffective for failing to challenge admissibility of his confession, because there was no 6 trial and therefore no occasion to challenge admissibility. 7 The motion is DENIED. 8 9 10 IT IS SO ORDERED. DATED: April 3, 2017 11 12 HONORABLE LARRY ALAN BURNS United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- 16cv638 and 17cv619

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