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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) ) ) ) ) ) ) ) ) No. CR 04-0319-PHX-SRB No. CV 06-2850-PHX-SRB (BPV) ORDER

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Plaintiff,
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v.
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Abelardo Sepulveda-Uribe,
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Defendant/Movant.
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Movant Abelardo Sepulveda-Uribe, who is now confined in FCI-Allenwood, Lycoming Unit, in White Deer, Pennsylvania, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Doc.# 121.)1 The Court will summarily dismiss the Motion.
I. Procedural History

Pursuant to a plea agreement, Movant pleaded guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and being an illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). (Doc.# 88.) The plea agreement provided for a sentencing range of no more than 48 months. (Doc.# 89 at 3.) On May 17, 2005, the Court sentenced Movant to 48-months incarceration followed by three years on supervised release. Movant subsequently appealed to the Ninth Circuit Court of Appeals, which dismissed the appeal on April 10, 2006. / / /

"Doc.#" refers to the docket number of filings in the criminal case.
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II.

Summary Dismissal A district court must summarily dismiss a § 2255 application "[i]f it plainly appears

from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Moreover, if there has been a valid waiver of the right to file a federal habeas corpus petition, a court lacks jurisdiction to hear the case. See Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005). III. Movant is Not Entitled to Relief To obtain relief pursuant to § 2255, a movant must establish that his federal constitutional or statutory rights were violated. Movant, however, validly waived the right to seek relief pursuant to § 2255 or otherwise to collaterally challenge his conviction and sentence. "[S]trict standards" are applied to find a waiver of constitutional rights. United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible to presume waiver from a silent record, and the Court must indulge every reasonable presumption against waiver of fundamental constitutional rights. United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004). Movant's waiver was clear, express, and unequivocal. Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). 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). The only claims that cannot be waived are claims that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See Washington v. Lampert, 422 F.3d at 871 (holding that a plea agreement that waives the right to file a federal
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habeas petition pursuant to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that challenges the voluntariness of the waiver); 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 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 (declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). As part of his plea agreement, Movant 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 defendant and imposition of sentence upon defendant (including any constitutional claims pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004) and the procedures that must be applied to determine a sentence under the Sentencing Guidelines that are waived pursuant to Section 2(a) above), 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.# 89 at 5.) Movant stated in his plea agreement that he had discussed the terms with

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his attorney, that he agreed to the terms and conditions, and that he entered into the plea
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voluntarily. (Id. at 10-11.)
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Movant expressly waived issues regarding the imposition of sentence and expressly
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waived the right to bring a § 2255 motion and this Court accepted Movant's plea as
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voluntarily made. Moreover, the Ninth Circuit has already determined that Movant
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knowingly and voluntarily waived his rights, which deprives this Court of jurisdiction to
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consider the motion to vacate. The Motion will be summarily dismissed.
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Accordingly,
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IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence Pursuant
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to 28 U.S.C. § 2255 (Doc.# 121 in CR 04-319-PHX-SRB) is denied and that the civil action opened in connection with this Motion (CV 06-2850-PHX-SRB (BPV)) is dismissed. The Clerk of Court must enter judgment accordingly.

DATED this 20th day of December, 2006.

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