Avalos v. USA

Filing 3

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Roger T. Benitez on 4/28/2020.(mme)

Case 3:17-cv-01269-BEN Document 3 Filed 04/28/20 PageID.21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
JUAN FLORES AVALOS,

Case No.: 17-cv-1269-BEN
16-cr-14-BEN

Movant,

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v.

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UNITED STATES OF AMERICA,

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ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT A SENTENCE UNDER
28 U.S.C. § 2255

Respondent.

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Movant Juan Flores Avalos filed a Motion to Vacate, Set Aside, or Correct a

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Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States opposes the

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motion. For the reasons set forth below, the Court denies the motion.

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BACKGROUND

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In 2016, Avalos was convicted of smuggling drugs in violation of 21 U.S.C.

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section 952 and 960. After granting departures for minor role and safety-valve, he was

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sentenced to 46 months. As part of his plea agreement and during the sentencing, Avalos

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waived his right to appeal or collaterally attack his sentence. Even so, he filed the instant

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motion for collateral relief under § 2255. Under § 2255, a movant is entitled to relief if

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the sentence: (1) was imposed in violation of the Constitution or the laws of the United

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States; (2) was given by a court without jurisdiction to do so; (3) was in excess of the

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maximum sentence authorized by law; or (4) is otherwise subject to collateral attack.

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Title 28 U.S.C. § 2255. The motion is timely.

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DISCUSSION

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The motion fails on two grounds. First, Movant validly waived his right to

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collaterally attack his sentence. Sentencing Transcript at 5:20. The record discloses no

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issues as to the voluntariness of the plea and waiver. When offered the opportunity to

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allocute, Avalos declined. Sentencing Transcript at 3:23.

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Second, contrary to his contentions, he has not made a viable claim of ineffective

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assistance of counsel. His claims are difficult to decipher and are unsupported by any

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affirmative evidence beyond the record. While Avalos claims that he was told he was

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going to get a lower sentence and was prevented from having safety valve because of an

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incorrect criminal history, his sworn statements during the change of plea hearing, as well

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as the findings by the Court at sentencing, belie these claims. Avalos repeatedly

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acknowledged that he understood the plea agreement and that his attorney could not

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guarantee the sentence he would receive. Plea Colloquy Transcript at 11 (“Neither your

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attorney nor anyone else can guarantee the sentence you will receive.”). His argument

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that he was prevented from receiving safety valve makes little sense. Sentencing

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Transcript at 3 (“Base offense level … reduced by two levels … under 2D1.1(b)(17) and

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5C1.2 [“Safety Valve”] … [based on] no criminal history.”) The Guideline range was 46

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to 57 months and the low-end sentence ultimately imposed was agreed to by the parties

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without fanfare.

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To prevail on an ineffective assistance of counsel claim, a defendant must show

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that his attorney’s performance was unreasonable under the prevailing professional

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standards and that the deficient performance prejudiced his defense. See Strickland v.

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Washington, 466 U.S. 668, 694-95 (1984). There is a “strong presumption” that

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counsel’s conduct is reasonable, Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir.

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1995), and “[r]eview of counsel’s performance is highly deferential.” United States v.

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Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). To establish “prejudice” under

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Strickland’s second prong, a petitioner must show a “reasonable probability that, but for

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counsel’s errors, he would not have pleaded guilty and would have insisted on going to

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trial.” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).

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The motion is denied because: (1) Movant validly waived his right to collateral
attack; and (2) Movant has not established either prong of the Strickland requirements.
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CONCLUSION

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The Motion to Vacate, Set Aside or Correct Sentence is DENIED.

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A court may issue a certificate of appealability where the movant has made a

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“substantial showing of the denial of a constitutional right,” and reasonable jurists could

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debate whether the motion should have been resolved differently, or that the issues

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presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S.

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322, 335 (2003). This Court finds that Movant has not made the necessary showing. A

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certificate of appealability is therefore DENIED.

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IT IS SO ORDERED.
Dated: April 28, 2020

______________________________
HON. ROGER T. BENITEZ
United States District Court Judge

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