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

LMH

1 2 3 4 5 6 7 8 9 10 11 12 Eziquio Najera-Escobar, 13 Defendant/Movant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eziquio Najera-Escobar ("Movant"), presently confined in the Eloy Detention Center in Eloy, Arizona, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #300). The Court will summarily dismiss the action. A. Procedural Background. Movant pled guilty to possession (brandishing) of a firearm in furtherance of a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A)(ii). On February 28, 2005, he was sentenced to a term of eighty-four months, to be followed by three years on supervised release. Movant did not appeal. Instead, he filed a § 2255 Motion. In his § 2255 Motion, Movant claims that counsel was ineffective at sentencing by failing to pursue downward departures (1) under 18 U.S.C. § 3553(b) pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004), (2) under U.S.S.G. 5K2.19 for postconviction rehabilitation, (3) for his status as a deportable alien, and (4) for aberrant behavior under U.S.S.G. § 5K2.20.
Case 2:03-cr-01188-NVW Document 307 Filed 07/20/2005 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

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No. CR 03-1188-PHX-NVW No. CV 05-2011-PHX-NVW (BPV) ORDER

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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 issues regarding his sentence. 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 to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant (including any constitutional claims pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004) and its progeny) providing that 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. #257 at 3-4). Movant also asserted that he discussed the terms with his attorney,

23 agreed to them and understood them, and that he entered into the plea voluntarily. Id. at 6-8. 24 At sentencing, the Court found that Movant had waived his right to collaterally attack the 25 matter and that the plea had been made voluntarily. 26 Plea agreements are contractual in nature and their plain language will generally be 27 enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 28 -2Case 2:03-cr-01188-NVW Document 307 Filed 07/20/2005 Page 2 of 4

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398 F.3d 1149, 1153 (9th Cir. 2005). For example, a waiver of appellate rights is enforceable if the language of the waiver encompasses the right to appeal on the grounds raised and the waiver is knowingly and voluntarily made. Id. 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), cert. denied sub nom. AbarcaEspinoza v. United States, 508 U.S. 979 (1993). The only claims that cannot be waived are a claim that the waiver itself was involuntary or that ineffective assistance of counsel rendered the waiver involuntary. See 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 part of the plea bargain), Abarca-Espinoza, 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 (summarizing Pruitt and Abarca, but declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). Movant has not made either claim. Instead, Movant's grounds for relief each pertain to sentencing. He contends that counsel was ineffective by failing to seek certain downward departures. Movant expressly waived issues regarding sentencing and expressly waived a § 2255 action. Cf. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (waiving appeal of sentencing issues also waives the right to argue on appeal that counsel was ineffective at sentencing), cert. denied, 534 U.S. 921 (2001). The Court accepted his plea as voluntarily made. Consequently, the Court finds that Movant waived the issues raised in his § 2255 motion. Because Movant has failed to present any claim that could possibly warrant relief, the Court will dismiss his § 2255 Motion.

IT IS THEREFORE ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #300) is DENIED and that the civil action

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opened in connection with this Motion (No. CV 05-2011-PHX-NVW (BPV)) is DISMISSED. DATED this 18th day of July, 2005.

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