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, vs. Arturo Sarabia-Lopez,

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No. CR 03-786-PHX-MHM No. CV 05-2311-PHX-MHM (JRI) ORDER

Arturo Sarabia-Lopez ("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. #71). The Court will summarily dismiss the action. A. Procedural Background. Movant pled guilty to conspiracy with intent to distribute five kilograms or more of cocaine, a violation of 21 U.S.C. §§ 846 and 841(a)(1); possession with intent to distribute five kilograms or more of cocaine, a violation of 21 U.S.C. §§ 846 and 841(a)(1); and maintaining a place for the purpose of distributing controlled substances, a violation of 21 U.S.C. § 856(a)(1). On April 18, 2005, he was sentenced to a term of eighty-four months, to be followed by five years on supervised release. Movant next filed the present § 2255 Motion. In his Motion, Movant claims that counsel was ineffective at sentencing by failing to pursue downward departures (1) under 18 U.S.C. § 3553(b); (2) under U.S.S.G. 5K2.19 for postconviction rehabilitation, (3) for his status as a deportable alien, and (4) under the "safety valve."
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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. The Ninth Circuit Court of Appeals has found that there are "strict standards for waiver of constitutional rights." United States v. Gonzalez-Flores, ___ F.3d ___, 2005 WL 1924724 (9th Cir. August 12, 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 indictment 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 the procedures that must be applied to determine a sentence under the Sentencing Guidelines that are waived pursuant to paragraph 2 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 -2Case 2:03-cr-00786-MHM Document 72 Filed 09/09/2005 Page 2 of 4

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collateral attack the defendant might file challenging his conviction or sentence in this case. (Doc. #70 at p. 5).

3 Second, Movant also asserted that he discussed the terms with his attorney, agreed to 4 them and understood them, and that he entered into the plea voluntarily. Id. at 8-10. Third, 5 at sentencing, the Court found that Movant had been sentenced in accordance with the terms 6 of the plea agreement and that he waived his right to appeal or collaterally attack the matter. 7 See Dkt. #69 at p. 3. The Court also found that the plea had been made voluntarily and with 8 an understanding of the consequences of the waiver. Id. 9 Plea agreements are contractual in nature and their plain language will generally be 10 enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 11 398 F.3d 1149, 1153 (9th Cir. 2005), pet. for cert. filed, NO. 05-5113 (June 30, 2005). For 12 example, a waiver of appellate rights is enforceable if the language of the waiver 13 encompasses the right to appeal on the grounds raised and the waiver is knowingly and 14 voluntarily made. Id. 15 A defendant may waive the statutory right to bring a § 2255 action challenging the 16 length of his sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United 17 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992), cert. denied sub nom. Abarca18 Espinoza v. United States, 508 U.S. 979 (1993). The only claims that cannot be waived are 19 a claim that the waiver itself was involuntary or that ineffective assistance of counsel 20 rendered the waiver involuntary. See Pruitt, 32 F.3d at 433 (expressing "doubt" that a plea 21 agreement could waive a claim that counsel erroneously induced a defendant to plead guilty 22 or accept a particular part of the plea bargain); Abarca-Espinoza, 985 F.2d at 1014 (expressly 23 declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness 24 of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (summarizing Pruitt and Abarca, but 25 declining to decide whether waiver of all statutory rights included claims implicating the 26 voluntariness of the waiver). Movant has not made either claim. 27 28 -3Case 2:03-cr-00786-MHM Document 72 Filed 09/09/2005 Page 3 of 4

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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. #71) is DENIED and that the civil action opened in connection with this Motion (No. CV 05-2311-PHX-MHM (JRI)) is DISMISSED. DATED this 7th day of September, 2005.

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