Free Report and Recommendation - District Court of Arizona - Arizona

SRM

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. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. PROCEEDINGS AT TRIAL According to the statement of factual basis in Movant's Plea Agreement, Movant participated in a conspiracy to transport three loads of marijuana from Mexico to Arizona, during August through December 2003. (Plea Agreement, #179 at 6.) On March 2, 2004, an indictment was issued against Movant and others, charging Movant with one count of conspiracy to possess with the intent to distribute marijuana (Count I) and one count of possession with intent to distribute marijuana (Count V). (Indictment, #1 at 2-3.) Attorney
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
United States of America, Plaintiff/Respondent -vsJose Ventura Villa-Hernandez, Defendant/Movant CR-04-0201-006-PHX-SRB CV-05-3853-PHX-SRB (JI) REPORT & RECOMMENDATION On Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255

I. MATTER UNDER CONSIDERATION Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on November 29, 2005 (#184). The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases , Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

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Antonio Bustamante was retained to represent Movant. (Notice of Appearance, #23.) Plea Agreement - At Movant's request, the matter was set for settlement conference before Magistrate Judge Voss. (M.E. 11/22/4, #89.) The settlement conference was held on December 23, 2004. (M.E. 12/23/04, #101.) Movant subsequently entered into a written plea agreement, wherein Movant agreed to plead guilty to Count I (conspiracy to possess), in exchange for dismissal of the remaining counts against him and various sentencing stipulations. In particular, the parties agreed that Movant would be sentenced at the low end of the guidelines range if the Court found him eligible for "safety valve" relief pursuant to U.S.S.G. § 5C1.2, or otherwise to the minimum allowed under 21 U.S.C. § 841(b)(1)(vii). The parties also agreed to a two point reduction in offense level for acceptance of responsibility. (Plea Agreement, #178 at 3.) As part of that agreement, Petitioner waived his appellate rights, as well as his "right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack." (Plea Agreement, #178 at 4.) Movant entered his plea of guilty on January 28, 2005, and the Court accepted the plea. (M.E. #116.) Sentencing - A Presentence Investigation Report was prepared, and recommended a Base Offense Level of 34, a two point reduction for "Safety Valve," a two point reduction for minor participant, and a three point reduction for acceptance of responsibility, resulting in a recommended Total Offense Level of 27. Movant had no prior criminal history. Accordingly, the guideline sentencing range was calculated at 70 to 87 months. (Response, #189 at Exhibit B.) Movant was sentenced on May 16, 2005 to a 70 month term of imprisonment. (M.E. 5/16/5, #176.) Appeal - Movant did not file a direct appeal.

B. PRESENT MOTION TO VACATE On November 29, 2005, Movant filed the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (#184). Movant's Motion argues that trial counsel was ineffective because he misrepresented to Movant that the plea agreement "would
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not result in a long sentence or prison time," and failed to investigate and present "mitigating evidence at sentencing." (Motion, #184 at 3.) Movant also argues that trial counsel was ineffective for failing to move for downward departures based upon: (1) aberrant behavior pursuant to U.S.S.G. § 5K2.0 (id. at 4); (2) Movant's deportability (id. at 5); (3) Movant's compliance with the "fast track program" pursuant to U.S.S.G. § 5K2.0 (id. at 6); and (4) Movant's cooperation under an "early disposition" program pursuant to U.S.S.G. § 5K3.1 (id. at 7). Respondents filed their Response (#189) on January 27, 2006, arguing that Movant has waived his right to bring the instant motion, and that in any event Movant fails to show any ineffective assistance of counsel. Despite being advised in the Service Order of the deadline for doing so (#188 at 2), Movant has not filed a reply in support of his Motion.

III. APPLICATION OF LAW TO FACTS Respondents argue that Movant has waived his right to file the instant Motion to Vacate. Movant's plea agreement included a waiver of his right to "collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack." (Plea Agreement, #178 at 4.) The present motion is just such a collateral attack. The Ninth Circuit regularly enforces "knowing and voluntary" waivers of appellate rights in criminal cases, provided that the waivers are part of negotiated guilty pleas, see United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994), and do not violate public policy, see United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996) (cataloguing public policy exceptions). Similarly, the right to collateral review may be waived. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993). Such waivers usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements. See Baramdyka, 95 F.3d at 843. However, to be enforceable, such waivers must be made "knowingly and voluntarily."
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United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994). Whether a particular waiver was made "knowingly and voluntarily" is a determination made by looking to the circumstances surrounding the signing and entry of the plea agreement. See United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). The Supreme Court has stated that where "a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. . . . [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective]." Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (internal quotation marks and citations omitted). Misrepresentation of Plea Agreement - Movant asserts that his plea was not knowing and voluntary because trial counsel misrepresented to Movant that the plea agreement "would not result in a long sentence or prison time." (Motion, #184 at 3.) However, Movant does not provide any specific information about what Movant was told by counsel, or how it was incorrect. Movant simply makes the assertion that "counsel knew that defendant's whole behavior and guilty plea was structured to avoid a plea agreement that would result in a long sentence or prison time." (Motion, #184 at 3.) That is not sufficient to establish a claim for ineffective assistance. See, e.g., James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) ( "Conclusory allegations [of ineffective assistance of counsel] which are not supported by a statement of specific facts do not warrant habeas relief." ). See also Stein v. U.S., 390 F.2d 625, 627 (9th Cir. 1968) ("[i]t is well-established that mere conclusory allegations are not sufficient to warrant relief under a 2255 motion"); and Shah v. U.S., 878 F.2d 1156, 1161 (9th Cir. 1989) ("Mere conclusory allegations do not warrant an evidentiary hearing."). Even if Movant's allegations are taken at face value as establishing that counsel represented that the plea agreement "would not result in a long sentence or prison time" (Motion, #184 at 3), that would not render the plea involuntary. According to the Plea Agreement, the unvarnished sentencing range applicable to Movant's offense was 10 years
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to life in prison. (Plea Agreement, #178 at 3.) In that context, Movant's actual sentence of five years and ten months arguably was not a "long sentence." Accordingly, representations to that effect by trial counsel would not have been improper or deficient performance. Under these circumstances, Movant has offered nothing to show that counsel's performance was below "the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 52. Sentencing Errors - Movant's other grounds for relief are all based upon post-plea proceedings, i.e. ineffective assistance of counsel at sentencing. This includes Movant's claims that trial counsel failed to investigate and present "mitigating evidence at sentencing" (Motion, #184 at 3), and failed to move for downward departures based upon: (1) aberrant behavior pursuant to U.S.S.G. § 5K2.0 (id. at 4); (2) Movant's deportability (id. at 5); (3) Movant's compliance with the "fast track program" pursuant to U.S.S.G. § 5K2.0 (id. at 6); and (4) Movant's cooperation under an "early disposition" program pursuant to U.S.S.G. § 5K3.1 (id. at 7). Where a waiver specifically includes the waiver of the right to appeal a sentence, then it also waives "the right to argue ineffective assistance of counsel at sentencing." U.S. v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000). Accordingly, Movant has waived his right to attack his conviction and sentence based upon these claims of ineffectiveness. Further, because these events occurred after entry of Movant's plea, they cannot establish any lack of knowledge or voluntariness at the time of pleading. Thus, Movant is barred not only from asserting sentencing errors as substantive claims, he cannot assert them as a basis to void his waiver. Accordingly, this Court must find that Movant's plea was entered knowingly and voluntarily, and that Movant has effectively waived his right to file the instant motion.

IV. RECOMMENDATION IT IS THEREFORE RECOMMENDED that the Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed November 29, 2005 (#184)
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be DISMISSED WITH PREJUDICE.

V. EFFECT OF RECOMMENDATION This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc).

DATED: June 5, 2006
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_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:04-cr-00201-SRB

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