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, Plaintiff, v. Porfirio Diaz Gallardo, Defendant/Movant.

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No. CR 4-0243-PHX-FJM No. CV 06-0527-PHX-FJM (ECV) ORDER

Movant Porfirio Diaz-Gallardo has filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C.§ 2255 motion (Dkt. #41). The Court will summarily dismiss the motion. A. Procedural History Movant pled guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326(a), with sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2). On March 21, 2005, he was sentenced to a term of 41 months to be followed by 36 months supervised release. In his 2255 motion, Movant challenges his sentence by raising three grounds for relief. First, he contends that his prior drug offenses should not be used to enhance his sentence under 8 U.S.C. § 1326(b)(2). Second, he appears to claim that although he was previously incarcerated for the crime of conspiracy to possess cocaine, this conviction was obtained 10 years ago and therefore this criminal conviction should not affect his criminal record for
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purposes of enhancement of his sentence in this action. Finally, Movant contends that he has had good behavior while in custody. Although it is not clearly articulated in his motion, it appears that Movant believes that these factors warrant a further downward departure of his sentence. B. Summary Dismissal A district court shall summarily dismiss a § 2255 application "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to 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 patently frivolous. Marrow 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). Because Movant plainly is not entitled to relief and the defects cannot be cured by amendment, the Court will summarily dismiss his motion to vacate. C. Failure to State a Claim. The Court finds that Movant has waived the challenges to his sentence. The Ninth Circuit Court of Appeals has found that there are "strict standards for 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). In this action, Movant's waiver was clear, express, and unequivocal. First, 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 information or indictment or to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant 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,
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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 p. 5).

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Second, Movant also asserted in his plea that he discussed the terms with his attorney,
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that he agreed to them and understood them, and that he entered into the plea voluntarily.
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(Doc. #40 at pp.6-7). Third, at sentencing, the Court found that Movant had been sentenced
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in accordance with the terms of the plea agreement and that he waived his right to appeal or
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collaterally attack the matter. (Dkt. #39 at p. 3). The Court also found that the plea had been
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made voluntarily and with an understanding of the consequences of the waiver. Id.
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Plea agreements are contractual in nature and their plain language will generally be
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enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo,
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398 F.3d 1149, 1153 (9th Cir.), cert. denied, 126 S. Ct. 198 (2005). For example, a waiver
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of appellate rights is enforceable if the language of the waiver encompasses the right to
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appeal on the grounds raised and the waiver is knowingly and voluntarily made. Id.
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A defendant may waive the statutory right to bring a § 2255 action challenging the
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length of his sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United
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States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992), cert. denied sub nom. Abarca19

Espinoza v. United States, 508 U.S. 979 (1993). Each of Movant's three grounds for relief
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pertains to the validity of his sentence. Movant expressly waived issues regarding sentencing
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and expressly waived a § 2255 action. Cf. United States v. Nunez, 223 F.3d 956, 959 (9th
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Cir. 2000) (waiving appeal of sentencing issues also waives the right to argue on appeal that
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counsel was ineffective at sentencing), cert. denied, 534 U.S. 921 (2001). The Court
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accepted his plea as voluntarily made. Consequently, the Court finds that Movant waived
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the issues raised in his § 2255 motion.
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IT IS THEREFORE ORDERED that the Motion to Vacate, Set Aside,or Correct
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Sentence pursuant to 28 U.S.C. § 2255 (Doc. #41) is denied. The Clerk of the Court shall
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enter a judgment of dismissal of this action and of the accompanying civil action (CV 060527-PHX-FJM (ECV) DATED this 8th day of June, 2006.

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