Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 On March 30, 2006, Gregorio Miranda-Martinez, ("Movant"), presently ) ) ) Plaintiff, ) vs. ) ) GREGORIO MIRANDA-MARTINEZ, ) ) ) Defendant. ) UNITED STATES OF AMERICA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CV 06-920-PHX-EHC (BPV) CR 04-0345-PHX-EHC (BPV)

REPORT AND RECOMMENDATION

14 confined in the California City Correctional Center, California City, California, filed 15 a pro se Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal 16 Custody pursuant to 28 U.S.C. § 2255 ("Motion") (Doc. #25). The Magistrate Judge 17 recommends that the District Court enter an order denying the Motion. 18 Ordinarily, a court must conduct a hearing on a motion unless it "and the files

19 and records of the case conclusively show that the petitioner is entitled to no relief ...." 20 28 U.S.C. § 2255. The Motion, as well as the files and records, do conclusively 21 establish that Miranda-Martinez is not entitled to relief. See Shah v. United States, 878 22 F.2d 1156, 1159 (9th Cir. 1989). Hence, no hearing is required. 23 I. 24 PROCEDURAL BACKGROUND. On April 8, 2004,a grand jury returned an indicted charging Movant with three

25 counts; Felon in Possession of Firearm; Illegal Alien in Possession of a Firearm; and 26 Re-Entry after Deportation. (Doc. No. 1.) 27 On June 28, 2004, Miranda-Martinez pled guilty to Count 3 of the Indictment,

28 Re-Entry after Deportation. (Doc. No. 6.)
Case 2:04-cr-00345-EHC Document 33 Filed 05/14/2007 Page 1 of 6

1

The plea was conditioned only upon the understanding that the maximum term

2 Miranda-Martinez could receive imprisonment for twenty (20) years, and a term of 3 supervised release of up to three years, and a fine of $250,000.00, and that the United 4 States would recommend a sentence of imprisonment at the low end of the applicable 5 guideline. (Doc. No. 12, p.2.) 6 The United States agreed to move to dismiss Counts 1 and 2 of the Indictment

7 after Defendant was sentenced on Count 3 of the Indictment. (Doc. No. 12., p. 3.) 8 The plea agreement also contained a waiver of Miranda-Martinez' appeal rights:

9 "Defendant hereby waives any right to raise on appeal or collaterally attack any matter 10 pertaining to this prosecution and sentence if the sentence imposed is consistent with 11 the terms of this agreement." (Doc. No. 12, p.4.) 12 Miranda Martinez was sentenced on October 22, 2004. (Doc. No. 10.) The

13 Court sentenced him to a prison term of eighty-seven (87) months. (Doc. No. 11.) 14 Miranda Martinez was also ordered placed on supervised release for a period of three 15 years following his release from imprisonment. (Id.) 16 On October 27, 2004, Miranda-Martinez filed a Notice of Appeal. (Doc. No.

17 13.) The Ninth Circuit Court of Appeals affirmed the judgment of the District Court 18 on July 14, 2005. (Doc. No. 24.) 19 Miranda-Martinez next filed the present § 2255 action. (Doc. No. 25.) He raises

20 three grounds for relief: (1) sentencing calculation errors regarding the proper criminal 21 history category; (2) his plea was not consistent with his sentence; and (3) counsel was 22 ineffective by not adequately representing Movant's interests in the terms of the plea 23 and regarding the calculation of his sentence under the guideline. (Doc. No. 25, p.5.) 24 On April 11, 2007, the District Court called for an answer from the United States

25 Attorney. (Doc. No. 27.) The Government filed a Response to Defendant's Motion to 26 Vacate, Set Aside or Correct Sentence on August 8, 2006, with exhibits one through six 27 attached. (Doc. No. 31.) No reply was filed. 28
Case 2:04-cr-00345-EHC

-2Document 33 Filed 05/14/2007 Page 2 of 6

1 DISCUSSION 2 3 A. Timeliness Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a one

4 year period of limitations from the date on which the judgement of conviction becomes 5 final has been imposed on the filing of motions for collateral relief by prisoners in 6 federal custody. 28 U.S.C. § 2255. The Magistrate Judge finds the Motion timely filed. 7 8 B. Waiver

The Government asserts that the Court should deny the Motion because Movant

9 knowingly, intelligently, and voluntarily waived his right to collaterally attack his 10 sentence. 11 Movant has waived challenges to his sentence. The Ninth Circuit Court of

12 Appeals has found that there are "strict standards for waiver of constitutional rights." 13 United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is

14 impermissible to presume waiver from a silent record, and the Court must indulge every 15 reasonable presumption against waiver of fundamental constitutional rights. Id. In this 16 action, Movant's waiver was clear, express, and unequivocal. 17 Plea agreements are contractual in nature, and their plain language will generally

18 be enforced if the agreement is clear and unambiguous on its face. United States v. 19 Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). A defendant may waive the statutory 20 right to bring a § 2255 action challenging the length of his sentence. United States v. 21 Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). The only claims that cannot be waived are 22 claims that the plea or waiver itself was involuntary or that ineffective assistance of 23 counsel rendered the plea or waiver involuntary. See Lampert, 422 F.3d at 871 (holding 24 that a plea agreement that waives the right to file a federal habeas petition pursuant to 25 § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that 26 challenges the voluntariness of the waiver); Pruitt, 32 F.3d at 433 (expressing doubt 27 that a plea agreement could waive a claim that counsel erroneously induced a defendant 28
Case 2:04-cr-00345-EHC

-3Document 33 Filed 05/14/2007 Page 3 of 6

1 to plead guilty or accept a particular plea bargain); see also Jeronimo, 398 F.3d at 1156 2 n.4 (declining to decide whether waiver of all § 2255 rights included ineffective 3 assistance of counsel claims implicating the voluntariness of the waiver). 4 "Collateral attacks based on ineffective assistance of counsel claims that are

5 characterized as falling outside [the category of ineffective assistance of counsel claims 6 challenging the validity of the plea or the waiver] are waivable." United States v. 7 Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). See also Williams v. United States, 8 396 F.3d 1340, 1342 (11th Cir. 2005) (joining the Second, Fifth, Sixth, Seventh, and 9 Tenth Circuits in holding that "a valid sentence-appeal waiver, entered into voluntarily 10 and knowingly, pursuant to a plea agreement, precludes the defendant from attempting 11 to attack, in a collateral proceeding, the sentence through a claim of ineffective 12 assistance of counsel during sentencing."). 13 "'Generally, courts will enforce a defendant's waiver of his right to appeal if 1)

14 the language of the waiver encompasses the defendant's right to appeal on the grounds 15 claimed on appeal, and 2) the waiver is knowingly and voluntarily made."' United 16 States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir. 1998) (citations and quotation 17 omitted). Although waiver of the right to appeal would not prevent an appeal where the 18 sentence imposed is not in accordance with the negotiated agreement, a waiver is valid 19 even if a defendant does not know the exact nature of what appellate issues might later 20 arise at the time the defendant enters the waiver. Navarro-Botello, 912 F.2d at 321. 21 Miranda-Martinez does not challenge the validity of the waiver. The Plea

22 Agreement expressly waived Movant's right to collaterally attack the sentence. (Doc. 23 No. 12, p. 4.) The Plea Agreement further stated that Miranda-Martinez agreed that his 24 attorney had fully advised him of the nature of the charges to which he was entering a 25 plea, that the guilty plea was not the result of force, threats, assurances or promises, that 26 his acceptance of the plea was voluntary, and that he agreed to be bound by its 27 provisions. (Doc. No. 12, p. 8.) 28
Case 2:04-cr-00345-EHC

-4Document 33 Filed 05/14/2007 Page 4 of 6

1

At Miranda-Martinez' change of plea hearing, he was placed under oath and the

2 Court queried him on his ability to understand his attorney. (Response, R/T 06/28/04, 3 2-5.) Miranda-Martinez responded that he was able to understand him in Spanish, and 4 that he read the Plea Agreement to him. (Id., 5-6.) Miranda-Martinez acknowledged 5 that he signed the plea agreement. (Id., 4-5.) 6 The court informed Miranda-Martinez of the constitutional rights he would

7 forfeit by pleading guilty. (Id., 13-15.) The court specifically directed Miranda8 Martinez' attention to the waiver of appeal rights and the right to file a petition for 9 habeas corpus in the plea agreement. (Id., 13). Movant said he understood and was 10 willing to give up these rights by pleading guilty. (Id.) The plea colloquy indicates 11 Miranda-Martinez was aware of the waiver provision in the plea agreement. See 12 Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry 13 a strong presumption of verity."). 14 The court concludes Miranda-Martinez was aware of the waiver provision in the

15 plea agreement when he pleaded guilty. The Plea Agreement signed by the Movant 16 demonstrates that Movant entered a knowing, intelligent and voluntary waiver of his 17 right to appeal or collaterally attack any matter pertaining to the prosecution or 18 sentence. The Magistrate Judge finds that the Movant knowingly, intelligently, and 19 voluntarily waived his right to collaterally attack his sentence. 20 Movant's assertions in his § 2255 Motion pertain to sentencing and do not

21 pertain to the voluntariness of the waiver. Movant expressly waived issues regarding 22 the imposition of sentence and expressly waived the right to bring a § 2255 motion. 23 The Court accepted his plea as voluntarily made. The Court specifically found that 24 Movant was sentenced "accordingly to your plea agreement and, therefore, find that 25 you have waived your rights to appeal the sentence that has been imposed on you." 26 (Response, R/T/ 10/22/04, 15.) Consequently, the Court finds that Movant waived the 27 28
Case 2:04-cr-00345-EHC

-5Document 33 Filed 05/14/2007 Page 5 of 6

1 sentencing issues raised in his § 2255 Motion. Thus, the Magistrate Judge recommends 2 that the District Court dismiss the Motion for lack of jurisdiction. Accordingly, 3 4 RECOMMENDATION After careful consideration of the Motion to Vacate, Set Aside, or Correct

5 Sentence and all papers filed in this action, the Magistrate Judge recommends that the 6 District Court deny Movant's motion. 7 Pursuant to Title 28 U.S.C. § 636(b), any party may serve and file written

8 objections within 10 days of being served with a copy of this Report and 9 Recommendation. If objections are not timely filed, they may be deemed waived. 10 If objections are filed, the parties should use the following case numbers: CR 04-

11 345-PHX-EHC and CV 06-0920-PHX-EHC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cr-00345-EHC

DATED this 11th day of May, 2007.

-6Document 33 Filed 05/14/2007 Page 6 of 6