Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Arturo Badillo-Franco, Defendant-Movant. United States of America, Plaintiff-Respondent, ) ) ) ) ) ) ) ) ) ) ) No. CR 04-0987-PHX-EHC CIV 05-1715-PHX-EHC (DKD) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

REPORT AND RECOMMENDATION

TO THE HONORABLE EARL H. CARROLL, U.S. DISTRICT JUDGE: Arturo Badillo-Franco filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on June 8, 2005 (Doc. #24). In his motion, he contends: 1) that his Fourth Amendment rights were violated when he was stopped by the U.S. Border Patrol without a reason; 2) trial counsel was ineffective by failing to present certain evidence bearing on whether Badillo-Franco had put the aliens' lives at risk; 3) trial counsel gave "misrepresentation and misadvisement" regarding the plea, the possibility of trial, and possible mitigating evidence at sentencing; and 4) Badillo-Franco failed to understand the plea and its consequences due to "misadvice" from his attorney. In his memorandum, Badillo-Franco also contends that he was entitled to a two-level downward departure as a deportable alien and a departure for aberrant behavior. The Government contends that Badillo-Franco waived his right to certain claims by the explicit terms of the plea agreement, and that as to others, he has failed to establish ineffective assistance of counsel. The Court recommends that Badillo-Franco's motion be denied.
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Badillo-Franco was arrested, waived indictment, and was charged by information with transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(iii) (Doc. #18, 19). Following the entry of a guilty plea, Badillo-Franco was sentenced to 16 months' imprisonment (Doc. #30, 31). The plea agreement contained the following pertinent language: The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the information or indictment or to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant (including any constitutional claims pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004), and its progeny) providing 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. The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case. (Doc. #23 at 4) (emphasis added).

14 As part of the change of plea proceeding, the District Court conducted a thorough 15 inquiry regarding Badillo-Franco's understanding of the rights he was giving up by pleading 16 guilty. As part of that inquiry, the District Court asked the following questions: 17 THE COURT: 18 your rights to appeal the sentence in this case, or any issues related to Blakely, if the Court 19 accepts your Plea Agreement and sentences you accordingly? 20 THE DEFENDANT: 21 THE COURT: 22 sentence and conviction was affirmed, you'd then have the right to file a separate proceeding 23 called a habeas corpus motion, and raise issues there that perhaps couldn't be raised at the 24 trial or appropriately raised at that time concerning how you were prosecuted, matters like 25 that. Do you understand you're waiving your rights to file that kind of proceeding also? 26 THE DEFENDANT: 27 (Doc. #34, Exh A at 26). 28 -2Case 2:04-cr-00987-EHC Document 37 Filed 12/02/2005 Page 2 of 6

And do you understand in your Plea Agreement you're waiving

Yes.

And you'd also have the right, if there was an appeal and your

Yes.

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Courts will generally enforce the plain language of a plea agreement if it is clear and unambiguous on its face, United States v. Nunez, 223 F.3 956, 958 (9th Cir. 2000), and the waiver is knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004). However, "a plea agreement does not waive the right to bring a § 2255 motion unless it does so expressly." United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). The Court finds that Badillo-Franco expressly waived his right to file a § 2255 motion as part of his plea agreement. However, the Ninth Circuit has expressed doubt that a defendant, by entering into a plea agreement, could waive certain claims of ineffective assistance of counsel brought pursuant to a § 2255 motion, notwithstanding an express plea waiver that covered all of a defendant's waivable statutory rights to file a motion pursuant to § 2255 challenging his conviction or sentence. However, those claims which are not waivable are limited to ones either challenging the knowing and voluntary nature of the plea agreement, or the voluntariness of the waiver itself. See United States v. Jeronimo, 398 F.3d 1149, 1156-57 n.4 (9th Cir. 2005), citing United States v. Pruitt, 32 F.3d at 433. Under this analysis, Badillo-Franco's claim of a Fourth Amendment violation regarding the initial stop by border patrol agents has been expressly waived. In addition, his first claims of ineffective assistance - that counsel should have presented certain evidence regarding whether Badillo-Franco had put the aliens' lives at risk, and argued for a downward departure -were also expressly waived. The parties stipulated as part of the plea agreement that Badillo-Franco would receive an enhancement for intentionally or recklessly creating a substantial risk of death or serious bodily injury, pursuant to § 2L1.1(b)(5) of the Sentencing Guidelines. The parties also stipulated that if Badillo-Franco, through counsel, argued for a downward departure, the Government retained the right to withdraw from the plea agreement. Because claims three and four - relating to counsel's "misadvice" regarding the plea and its consequences - implicate the voluntariness of the agreement itself, they cannot be waived. Essentially Badillo-Franco contends that trial counsel failed to advise him of the

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likely sentence and the risks of proceeding to trial; and that he was not advised by his attorney of the nature of the charges, the consequences of a plea agreement, and was not shown a plea agreement. The record of the change of plea proceeding, including the District Court's inquiry of Badillo-Franco's understanding of the express terms of the plea agreement, refute these assertions. The District Court determined by questioning Badillo-Franco, that counsel had previously explained to him his right to a grand jury indictment, and the possible maximum sentence of twenty years and maximum fine of $250,000. The District Court found that Badillo-Franco had waived the right to indictment (Doc. #30 at 13). Badillo-Franco also acknowledged that he understood from counsel that if he pleaded guilty, he would not get the maximum sentence, and would not likely have any fine imposed, based upon his financial circumstances, and that he would be deported to Mexico following his term of incarceration (Id. at 16). Badillo-Franco further indicated to the District Court that trial counsel had explained the possible sentencing range, and that in counsel's opinion, Badillo-Franco could receive between 14 and 21 months as a minimum sentence (Id. at 18). Badillo-Franco was sentenced to 16 months' imprisonment. Badillo-Franco also acknowledged when questioned by the District Court, that he understood that his sentence would be increased, by reason of a particular provision, because of his admission that he intentionally or recklessly created a substantial risk of death or serious bodily injury to someone involved in this incident (Id. at 19-20). In addition, when the Court questioned Badillo-Franco about the factual basis, the following conversation took place: THE COURT: : Did these people that were riding in the truck when you got

arrested, did they get in the truck in California? THE DEFENDANT: THE COURT: Yes.

How long had you been driving before you got stopped?

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THE DEFENDANT: THE COURT:

About an hour.

How many people were in the truck with you? Four.

THE DEFENDANT: THE COURT:

When they got in the truck, did two of them hide in the back of

the truck, in the pickup part of the truck in a tool box in a cabinet? THE DEFENDANT: THE COURT: Yes.

And were they in there for an hour or more while you drove the

truck before you got stopped? THE DEFENDANT: THE COURT: Approximately.

And that was in August? Yes.

THE DEFENDANT: THE COURT:

Hot day? Yes. But they had a small ventilator or fan and ice and

THE DEFENDANT: water in the bed. THE COURT:

Do you agree that your conduct [at] that time placed their lives

in jeopardy because of the heat and how they were being transported? THE DEFENDANT: Yes.

(Doc. #34, Exh A at 37-38) (emphasis added). A review of the record indicates that Badillo-Franco had been previously advised by counsel concerning the consequences of his plea; and that he understood the plea and its consequences, as explained by the Court, including those rights he was explicitly waiving by entering into the plea agreement. IT IS THEREFORE RECOMMENDED that Arturo Badillo-Franco's Motion to Vacate, Set Aside or Correct Sentence be DENIED (Doc. #24). This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The

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parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure. DATED this 2nd day of December, 2005.

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