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 Nelson Espinoza-Martinez, 13 Defendant/Movant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nelson Espinoza-Martinez ("Movant"), presently confined in the United States Penitentiary in Adelanto, California, filed an amended pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #23). The Court will summarily dismiss the action. A. Procedural Background. Movant pled guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326(a). On January 24, 2005, he was sentenced to a term of forty-two months, to be followed by three years of supervised release. Petitioner has amended his petition as required by the Court. He has also submitted a Memorandum Brief containing his contentions. Although he has not identified each ground for relief numerically, his Memorandum Brief raises four challenges to his sentences: (1) his sentence must be vacated because the Court used a preponderance of the evidence standard to find the fact of Movant's prior conviction; (2) his prior state court conviction could not be
Case 2:04-cr-01114-SMM Document 27 Filed 09/07/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) )

No. CR 04-1114-PHX-SMM No. CV 05-843-PHX-SMM (VAM) ORDER

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relied upon at sentencing because he was not informed of his right to consular notification for the state court conviction; (3) his status as an illegal alien is a mitigating circumstance that justifies a downward departure under the guidelines; and (4) his sentence was improperly enhanced sixteen levels because there were issues of fact relating to his criminal history. For relief, Movant requests to be resentenced "consistent with a jury's findings." (Brief at 15.) 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, at *7 (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 information or 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 -2Case 2:04-cr-01114-SMM Document 27 Filed 09/07/2005 Page 2 of 5

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(2004) and its progeny) 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 collateral attack the defendant might file challenging his conviction or sentence in this case. (Doc. #13 at p. 5). Second, Movant also asserted that he discussed the terms with his attorney, agreed to

7 them and understood them, and that he entered into the plea voluntarily. (Doc. #13 at 6-7.) 8 Third, at sentencing, the Court found that Movant had been sentenced in accordance with the 9 terms of the plea agreement and that he waived his right to appeal or collaterally attack the 10 matter. See Dkt. #15 at 3. The Court also found that the plea had been made voluntarily and 11 with an understanding of the consequences of the waiver. Id. 12 Plea agreements are contractual in nature and their plain language will generally be 13 enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 14 398 F.3d 1149, 1153 (9th Cir. 2005), pet. for cert. filed, No. 05-5113 (June 30, 2005). For 15 example, a waiver of appellate rights is enforceable if the language of the waiver 16 encompasses the right to appeal on the grounds raised and the waiver is knowingly and 17 voluntarily made. Id. 18 A defendant may waive the statutory right to bring a § 2255 action challenging the 19 length of his sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United 20 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992), cert. denied sub nom. Abarca21 Espinoza v. United States, 508 U.S. 979 (1993). The only claims that cannot be waived are 22 a claim that the waiver itself was involuntary or that ineffective assistance of counsel 23 rendered the waiver involuntary. See Pruitt, 32 F.3d at 433 (expressing "doubt" that a plea 24 agreement could waive a claim that counsel erroneously induced a defendant to plead guilty 25 or accept a particular part of the plea bargain); Abarca-Espinoza, 985 F.2d at 1014 (expressly 26 declining to hold that a waiver forecloses a claim of ineffective assistance or involuntariness 27 of the waiver); see also Jeronimo, 398 F.3d at 1156 n.4 (summarizing Pruitt and Abarca, but 28 -3Case 2:04-cr-01114-SMM Document 27 Filed 09/07/2005 Page 3 of 5

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declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). Movant has not made either claim, and he does not in any way contend that his plea was involuntary. Instead, Movant's grounds for relief each pertain to the validity of his sentence and for relief in his action, he seeks to be resentenced. 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. D. Motions. Movant has also filed a motion seeking leave to proceed as an indigent. No filing fee is required for a § 2255 proceeding and the motion will therefore be denied. Movant has also requested appointment of counsel. Appointment of counsel is mandatory pursuant to Rule 8(c) of the Rules Governing § 2255 Cases when an evidentiary hearing is required, United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995), and when necessary for effective discovery pursuant to Rule 6(a) of the Rules Governing § 2255 Cases. At this juncture, neither are required, particularly because Movant has waived the issues. There is no reason to hold a hearing or take discovery on issues that have been waived. Appointment is also required when the complexities of the case are such that lack of counsel would equate with the denial of due process. Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980) (citing Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir. 1962)). There is presently no indication that lack of counsel would result in the denial of due process. Otherwise, the court must determine whether the interests of justice require the appointment of counsel. Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) (quoting 18 U.S.C. § 3006A(a)(2)(B)). This determination is guided by an assessment of petitioner's ability to articulate his claim, the complexity of the legal issues, and the -4Case 2:04-cr-01114-SMM Document 27 Filed 09/07/2005 Page 4 of 5

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likelihood of success on the merits. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). Petitioner has articulated his claims well and the legal issues are not inherently complex. He has no chance of success on these claims because he has waived them. The Court will therefore deny his request.

IT IS THEREFORE ORDERED that the amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #23) is DENIED and that the civil action opened in connection with this Motion (No. CV 05-843-PHX-SMM (VAM)) is DISMISSED. The pending motions (Dkt. #25, #26) are denied.

DATED this 6th day of September, 2005.

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