Free Order on Motion to Vacate (2255) - 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 v. Pedro Cuevas-Pereda, Defendant/M ovant. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CR 04-0307-PHX-EHC No. CV 04-1354-PHX-EHC (JJM ) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JKM

M ovant Pedro Cuevas-Pereda, who is confined in the Florence Correctional Cent er in Florence, Arizona, filed a pr o s e M otion to Vacate, Set Aside, or Correct Sentence by a P ers on in Federal Custody pursuant to 28 U.S.C. § 2255 (CR Doc. #15). The Court will summarily dismiss the M otion. I. Procedural History Pursuant to a plea agreement, M ovant pled guilty to illegal reentry , in violat ion of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. 1326 (b)(2). The plea agreement p rovided for a sentencing range of 10 to 63 months . O n J une 14, 2004, the Court sentenced M ovant to

a 57-month term of imprisonment followed by 36 months on supervised release. In his M otion, M ovant seeks a reduct ion of his sentence. He argues that the plea agreement he signed p rovided for a sentencing range of 24 to 36 months, but that days before his sentencing, his attorney told him he would get between 41 and 63 months. ///

Case 2:04-cr-00307-EHC

Document 22

Filed 09/07/2006

Page 1 of 4

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

II. S ummary 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 P roceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a

response from the government is required. See M arrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9t h Cir. 1982). M oreover, if t here has been a valid waiver of the right to file a federal habeas corpus petition, a court lacks jurisdict ion t o hear the case. See Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005). In this case, the record shows that s ummary dismissal under Rule 4(b) is warranted and the Court lacks jurisdiction to hear the M otion because M ovant has waived the right to bring a § 2255 motion. III. Waiver M ovant has waived challenges to his sentence. The Ninth Circuit Court of Appeals has found that there are "strict standards for waiver of constitutional rights." Unit ed

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 p resumption against waiver of fundamental constitutional rights. 1066, 1071 (9th Cir. 2004). unequivocal. United St at es v. Hamilton, 391 F.3d

In t his act ion, M ovant's waiver was clear, express, and

P lea agreements are contractual in nature, and their plain language w ill

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. U nit ed 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. Lamp ert , 422 F.3d at 871 (holding that a plea agreement that waives the right to file a

Case 2:04-cr-00307-EHC

Document 22

-2Filed 09/07/2006

Page 2 of 4

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

federal habeas petition pursuant to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim t hat challenges the voluntariness of the waiver); Pruitt, 32 F.3d at 433 (expressing doubt that a plea agreement could waive a claim that counsel erroneous ly 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 right s included claims implicating the voluntariness of the waiver). As part of his plea agreement, M ovant made the following waiver: Defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could as s ert t o the information or indictment or to the court's entry of judgment against defendant and imposit ion of sentence upon defendant, provided the sentence is consis t ent with this agreement. Defendant further waives: (1) any right to appeal the court's entry of judgment against defendant; (2) any right to appeal the imp os ition 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 sent ence under Title 28, United States Code, Section 2255, or any other collateral attack. (CR Doc. #15 at 4-5). M ovant indicated in his plea agreement t hat he had discussed the terms with his attorney, agreed to the terms and conditions, and entered into t he p lea voluntarily. (CR Doc. #15 at 6). M ovant's assertions in his § 2255 M otion all pertain to sentencing and do not pertain to the voluntariness of his waiver. M ovant expressly waived issues regarding the

imposition of sentence and expressly waived the right to bring a § 2255 mot ion. The Court accepted his p lea as voluntarily made. Consequently, the Court finds that M ovant waived the sentencing issues raised in his § 2255 M otion. Thus, the Court will summarily dismiss the M otion for lack of jurisdiction. Accordingly, /// /// /// -3Filed 09/07/2006

Case 2:04-cr-00307-EHC

Document 22

Page 3 of 4

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

/// IT IS ORDERED that the M otion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CR Doc. #15 in CR 04-0307-PHX-EHC) is denied and that the civil action opened in connect ion with this M otion (CV 04-1354-PHX-EHC (JJM )) is dismissed. The Clerk of Court must enter judgment accordingly. DATED this 6th day of September, 2006.

Case 2:04-cr-00307-EHC

Document 22

-4Filed 09/07/2006

Page 4 of 4