Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

LMH

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. David Gil Rodriguez, Defendant/M ovant. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CR 04-0606-PHX-DGC No. CV 05-1807-PHX-DGC (DKD) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

David Gil Rodriguez ("M ovant"), presently confined in the Eloy Detention Center in Eloy, A riz ona, filed an amended pro se M otion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #60). amend. A. Procedural Background. M ovant pled guilty to possession with intent to distribut e marijuana, a violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(vii). On M arch 14, 2005, he was sentenced to a term of thirty months, to be followed by three y ears on s up ervised release. He did not file a notice of appeal. In his § 2255 M otion, M ovant raises four grounds for relief: (1) Blakely v. Washington, 124 S. Ct. 2531 (2004) justifies a downward departure under 18 U.S.C. § 3553(b); (2) a downward dep arture is warranted under U.S.S.G. § 5K2.19 for p os t conviction rehabilitation; (3) counsel was ineffective by misrepresenting the The Court will dismiss the action with leave to

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conditions of t he plea bargain and the likely outcome of the plea; and (4) a reduction in sentence is warranted under the "safety valve." B. S ummary Dismissal. A district court shall summarily dismiss a § 2255 application "[i]f it plainly appears from the face of t he motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled t o relief." Rule 4(b), RULES GOVERNING § 2255 ACTIONS. The district court need not hold an evidentiary hearing when the movant 's allegations, viewed against the record, either fail to state a claim for relief or are p at ent ly frivolous. M arrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); see also Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (district court may summarily dismiss without ordering a response where the record conclusively or plainly shows that the movant is not entitled to relief). The present motion fails to state a claim for relief. Because the defects could pos s ibly be cured, the Court will dismiss t he motion with leave to amend. The Court, however, cannot advise M ovant how to cure the defects. See P liler v. Ford, 124 S. Ct. 2441, 2446 (2004) (to be reported at 542 U.S. 225). C. Failure to S tate a Claim. 1. Sentencing guidelines: grounds one, two and four Three of M ovant's grounds contend that he is entitled to downward dep artures under the sentencing guidelines. M ovant has waived each of these grounds. As part of

his plea agreement, M ovant made the following waiver: The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the indictment or information or to the Court's entry of judgment against t he defendant and imposition of sentence up on t he defendant (including any constitutional claims pursuant t o Blakely v. Washington, 124 S. Ct. 2531 (2004) and the procedures that must be applied to determine a s ent ence under the Sentencing Guidelines that are waived pursuant to paragrap h 2 above), provided that the sentence is consistent w it h t his agreement. The defendant further waives: (1) any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal t he imposition of sentence upon defendant under T it le 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collat erally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant acknowledges t hat this waiver -2Filed 08/03/2005

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shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case. (Doc. #51 at 4-5, ¶ 4). M ovant waived his right to have a jury make factual findings beyond

3 a reasonable doubt with respect to sentencing departures. 4 M ovant also ass ert ed t hat he discussed the terms with his attorney, agreed to them and 5 understood them, and that he entered into the plea voluntarily. Id. at 8-9. 6 the Court found that M ovant voluntarily waived his right to a collateral attack. (Sentence 7 at 3, Doc. # 52.) 8 Plea agreements are contractual in nat ure and their plain language will generally be 9 enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 10 398 F.3d 1149, 1153 (9th Cir. 2005). For example, a waiver of appellate rights is enforceable 11 if the language of the waiver encompasses the right to appeal on the grounds raised and 12 the waiver is knowingly and voluntarily made. Id. 13 A defendant may waive the statutory right to bring a § 2255 action challenging t he 14 length of his sentence. United States v. Pruitt, 32 F.3d 431, 433 (9t h Cir. 1994); United 15 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992), cert. denied sub nom. Abarca-Espinoza 16 v. United States, 508 U.S. 979 (1993). The only claims that cannot be waived are a claim 17 that the waiver itself was involuntary or that ineffective assistance of counsel rendered the 18 waiver involuntary. 19 could w aive a claim that counsel erroneously induced a defendant to plead guilty or accept 20 a p articular part of the plea bargain), Abarca-Espinoza, 985 F.2d at 1014 (expressly declining 21 to hold that a waiver forecloses a claim of ineffective assistance or involuntariness of the 22 waiver); see also Jeronimo, 398 F .3d at 1156 n.4 (summarizing Pruitt and Abarca, but 23 declining to decide whether waiver of all statutory rights included claims implicating the 24 voluntariness of the waiver). 25 departures are not framed in a manner that attacks the voluntariness of the plea. 26 sentencing issues therefore have been waived. 27 28
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Id. at 2, ¶ 2.a. In his plea,

At sentencing,

See Pruitt, 32 F.3d at 433 (expressing "doubt" that a plea agreement

M ovant's claims that he is entit led to certain downward The

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2. Ineffective assistance of counsel: ground three In ground three, M ovant contends that counsel was ineffect ive by misrepresenting the conditions of the plea bargain and the likely outcome of the p lea. M ovant has not

specified w hat terms were misrepresented, nor has he specified how the outcome of the plea varied from counsel's advice. For a claim of ineffective assistance of counsel, a

defendant must prove (1) that counsel's performance fell below an objective standard of reas onableness and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. U.S. 668, 687-88 (1984). Strickland v. Washington, 466

M ovant's allegations are too vague to state a claim, particularly In

becaus e he has not indicated how he was prejudiced by counsel's performance.

addition, t his ground is also waived because M ovant has not contended that counsel's ineffect iveness rendered the plea involuntary. fails to state a claim. D. Amendment. M ovant may choose to amend his M otion. The Clerk of Court w ill be directed to provide M ovant with a form for filing a § 2255 motion. M ovant is advised that the Accordingly, M ovant's allegation presently

Amended M otion must be retyped or rewritten in it s ent irety on a court-approved form and may not incorporate any part of the original M otion by reference. Any Amended M otion submitted by M ovant should be clearly designated as such on the face of the document. An amended M ot ion s upersedes the original M otion. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexis t ent. Ferdik, 963 F.2d at 1262. Thus, causes of action alleged in an original

motion which are not alleged in an amended mot ion are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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IT IS THEREFORE ORDERED: (1) That the amended M otion to Vacate, Set Aside, or Correct Sentence Pursuant

to 28 U.S.C. § 2255 (Doc. #60) is dismissed with leave to amend. M ovant s hall have 30 days from the date this Order is filed to file a Second Amended M otion; (2) That the Clerk of Court is directed to ent er a judgment of dismissal of the

accompanying civil action (CV 05-1807-PHX-DGC (DKD)), without p rejudice and without further notice to M ovant, if M ovant fails to file an Amended M otion w it hin 30 days of the date this Order is filed; and (3) That the Clerk of Court is directed to provide to M ovant a current court-

approved form for filing a § 2255 M otion. DATED this 2nd day of August, 2005.

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Name Prison Number Place of Confinement IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA vs. , (Full Name of Movant) , (Include name under which you were convicted.) Movant. ) ) ) ) ) ) ) ) ) ) ) ) )

Case Number (To be supplied by the Clerk, U. S. District Court) MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (28 U.S.C. § 2255)

(If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.) INSTRUCTIONS - READ CAREFULLY (1) This motion must be legibly handwritten or typewritten and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. Where more room is needed to answer any question, use reverse side of sheet. (2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum. (3) Upon receipt, your motion will be filed if it is in proper order. No fee is required with this motion. (4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in forma pauperis, in which event you must execute the Declaration on the last two (2) pages, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the Certificate as to the amount of money and securities on deposit to your credit in any account in the institution. (5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions

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either in the same district or in different districts, you must file separate motions as to each judgment. (6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction. (7) When the motion is fully completed, the must be mailed to: Phoenix & Prescott Divisions: OR U.S. District Court Clerk U.S. Courthouse, Suite 321 401 West Washington St., SPC 10 Phoenix, Arizona 85003-2119 original and two (2) copies Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street Tucson, Arizona 85701-5010

(8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency. MOTION 1. 2. 3. 4. Name and location of court which entered the judgment of conviction under attack: Date of judgment of conviction: Length of sentence: Sentencing Judge: Nature of offense involved (all counts):

5.

What was your plea? (Check one) (a) Not Guilty ( ) (b) Guilty ( ) (c) Nolo contendere ( ) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details:

Kind of trial: (Check one) (a) Jury ( ) (b) Judge only ( ) 7. Did you testify at the trial? Yes ( ) No ( ) 8. Did you appeal from the judgment of conviction? Yes ( ) No ( ) 9. If you did appeal, answer the following: (a) Name of Court: (b) Result: (c) Date of result: 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any federal court? Yes ( ) No ( ) 11. If your answer to 10 was "yes," give the following information: (a) (1) Name of Court: (2) Nature of proceeding:
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6.

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(3) Grounds raised:

(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (5) Result: (6) Date of result: (b) As to any second petition, application, or motion, give the same information: (1) Name of court: (2) Nature of proceeding: (4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (5) Result: (6) Date of result: (c) As to any third petition, application, or motion, give the same information: (1) Name of court: (2) Nature of proceeding: (3) Grounds raised:

(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (5) Result: (6) Date of result: (d) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application, or motion? (1) First petition, etc. Yes ( ) No ( ) (2) Second petition, etc. Yes ( ) No ( ) (3) Third petition, etc. Yes ( ) No ( ) (e) If you did not appeal from the adverse action on any petition, application, or motion, explain briefly why you did not:

12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. CAUTION: If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later date.

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For your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. If you select one or more of these grounds for relief, you must allege facts in support of the ground or grounds which you choose. Do not check any of the grounds listed below. The motion will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by an unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground One: Supporting FACTS (tell your story briefly without citing cases or law):

B.

Ground Two: Supporting FACTS (tell your story briefly without citing cases or law):

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C.

Ground Three: Supporting FACTS (tell your story briefly without citing cases or law):

D.

Ground Four: Supporting FACTS (tell your story briefly without citing cases or law):

13. If any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them:

14. Do you have any petition or appeal now pending in any court as to the judgment under attack? Yes ( ) No ( )
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15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing: (b) At arraignment and plea: (c) At trial: (d) At sentencing: (f) In any post-conviction proceeding: (g) On appeal from any adverse ruling in a post-conviction proceeding:

16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at approximately the same time? Yes ( ) No ( ) 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes ( ) No ( ) (a) If so, give the name and location of the court which imposed the sentence to be served in the future: (b) Give the date and length of sentence to be served in the future:

(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes ( ) No ( ) WHEREFORE, movant prays that the court grant him all relief to which he may be entitled in this proceeding. I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct:

Executed on

(date)

Signature of Movant

Signature of Attorney (if any)

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