Free Order on Motion to Dismiss All Charges - District Court of Arizona - Arizona

JKM

1 2 3 4 5 6 7 8 9 10 11 12 Jose Luis Ayon Martinez, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court is Defendant's pro se Motion to Dismiss or for Time Served (Doc. #14). The Motion will be denied for lack of jurisdiction. On April 28, 2003, the Court sentenced Defendant to thirty-seven months of imprisonment upon his plea of guilty to a single count of illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). Defendant did not appeal. Instead, on February 28, 2005, he filed a Motion to Dismiss or for Time Served arguing that his sentence should be reduced because as an undocumented alien, he cannot be detained for more than six months. The Government has filed a Response postulating that Defendant must be attempting to seek relief under Zadvydas v. Davis, 533 U.S. 678 (2001) (when there is no reasonable likelihood that a foreign government will accept an alien's return in the reasonably foreseeable future, the INS may not detain an alien for more than the six months), and Clark v. Martinez, 125 S. Ct. 716 (2005) (extending the holding in Zadvydas to inadmissible aliens). The Government asserts that Zadvydas and Clark are
Case 2:04-cr-01007-FJM Document 18 Filed 10/11/2005 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

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CR 04-1007-PHX-FJM ORDER

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inapposite because they apply only to aliens detained by the Department of Homeland Security pending deportation, and not to aliens who are serving criminal sentences in the custody of the Bureau of Prisons. The Court agrees with the Government's analysis, but finds that it is without jurisdiction to consider the merits of Defendant's Motion to Dismiss. Once a judgment of sentence has been entered, the district court lacks jurisdiction to review it except in narrow circumstances. See 18 U.S.C. § 3582(c); United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Defendant's Motion to Dismiss does not raise any of the statutory exceptions provided in 18 U.S.C. § 3582. The only other basis for relief is a collateral attack pursuant to 28 U.S.C. § 2255. Defendant, however, does not refer to § 2255 and he has not used the court-approved § 2255 form as required by Rule 3.5(a) of the Local Rules of Civil Procedure. Moreover, in Castro v. United States, 540 U.S. 375 (2003), the Supreme Court held that a district court may not recharacterize a post-judgment motion as a § 2255 motion "unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's `second or successive' restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing." Castro, 540 U.S. at 377 (emphasis in original). But even if the Court had provided Defendant with the Castro warning and opportunity to amend, it would not recharacterize his motion as a motion brought under § 2255. The Court declines to recharacterize Defendant's Motion to Dismiss as a § 2255 motion because he waived his right to file a § 2255 motion in his plea agreement: The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the information or to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant, provided that the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. (Doc. #13 at 4-5). Movant also affirmed that he discussed the terms of the agreement with

27 his attorney, agreed to them and understood them, and that he entered into the plea 28
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voluntarily. Id. at 6. At sentencing, the Court found that Movant had waived his right to collaterally attack the matter and that the plea had been made voluntarily. (Doc. #12 at 3). Plea agreements are contractual in nature and their plain language will generally be enforced if the agreement is clear and unambiguous on its face and the waiver is knowingly and voluntarily made. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). More specifically, a defendant may waive the statutory right to bring a § 2255 action challenging the length of his sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992), cert. denied sub nom. AbarcaEspinoza v. United States, 508 U.S. 979 (1993). The only claims that cannot be waived are a claim that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See Pruitt, 32 F.3d at 433 (expressing "doubt" that a plea agreement could waive a claim that counsel erroneously induced a defendant to plead guilty or accept a particular part of the plea bargain); Abarca, 985 F.2d at 1014 (expressly declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (summarizing Pruitt and Abarca, but declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). Defendant has not made either claim. Because Defendant expressly waived his right to file a § 2255 action in his plea agreement and the Court accepted the plea as knowingly and voluntarily made, the Court will not recharacterize his Motion to Dismiss as a § 2255 motion. Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss or for Time Served (Doc. #14) is denied for lack of jurisdiction. DATED this 7th day of October, 2005.

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