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

1 2 3 4 5 6 7 8 United States of America, 9 Plaintiff, 10 v. 11 Juan Yanez-Hernandez, 12 Defendant/Movant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SC

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 04-01229-PHX-NVW No. CV 06-2022-PHX-NVW (LOA) ORDER

Movant Juan Yanez-Hernandez ("Movant"), who is confined in the Northeast Ohio Correctional Institution in Youngstown, Ohio, has filed a pro se "Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255." (Doc.# 43.)1 Movant's Motion will be summarily denied. I. Procedural Background On March 31, 2005, Movant pleaded guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326(a), which was subject to a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2). (Doc.# 35.) During the same hearing, Movant admitted violating a condition of supervised release by committing the crime of illegal re-entry. (Id.; see also CR 2005-50012.) On August 1, 2005, the Court sentenced Movant to a term of 51 months for illegal re-entry after deportation and to a consecutive eight-month sentence for the supervised release violation. (Doc.# 23; doc.# 10 in CR 2005-50012.) Movant's direct appeal was denied on July 27, 2006, because Movant had validly waived appeal. 2006 WL 2085322 (9th

"Doc.#." refers to the docket number of documents filed in the criminal case.
Document 47 Filed 10/31/2006 Page 1 of 6

Case 2:04-cr-01229-NVW

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Cir. 2006). II. Summary Dismissal A district court must summarily dismiss a § 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing § 2255 Proceedings for the United States Courts, 28 U.S.C. foll. § 2255. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). The record shows that Movant plainly is not entitled to relief and that summary dismissal under Rule 4 is warranted. III. Movant is Not Entitled to Relief To obtain relief pursuant to § 2255, a movant must establish that his federal constitutional or statutory rights were violated. In his motion to vacate, Movant argues that he was wrongly sentenced to the consecutive eight-month sentence for violation of a condition of supervised release because he could not have been subject to supervised release in 2004 from his 1997 conviction. (Doc.# 43.) The motion will be summarily dismissed for two reasons. First, Movant received the consecutive eight-month sentence for violating a condition of supervised release from his 2003 conviction, not his 1997 conviction. Second, Movant validly waived the right to seek collateral relief. A. Supervised Release Sentence On September 23, 2003, Movant was convicted in the Southern District of California for illegal re-entry for which incarceration and supervised release were imposed. In CR 2005-50012, Movant was charged in the Southern District of California with violating a condition of his supervised release imposed pursuant to his 2003 conviction, namely, again illegally re-entering the United States. (See doc.# 1 in CR 2005-50012.) The supervised release violation was transferred from the Southern District of California to this Court on February 3, 2005 and this Court subsequently sentenced Movant to an eight-month sentence -2Case 2:04-cr-01229-NVW Document 47 Filed 10/31/2006 Page 2 of 6

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for that violation to run consecutive to the sentence for illegal re-entry. Movant was not punished for violation of conditions of supervised release stemming from his 1997 conviction and is not entitled to relief on that basis. B. Waiver In addition to the foregoing, Movant is not entitled to § 2255 relief because he validly waived the right to appeal or seek collateral review of his conviction and sentences. (Doc.# 22 at 5.) "[S]trict standards [apply to find] 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). Movant's waiver was clear, express, and unequivocal. Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 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 also waive the statutory right to file a § 2255 motion 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). The only claims that cannot be waived are claims that the waiver itself was not voluntary and intelligent or that the waiver was rendered involuntary or unintelligent due to the ineffective assistance of counsel. See Washington v. Lampert, 422 F.3d 864, 869-70 (9th Cir. 2005) ("a plea agreement that waives the right to [seek collateral review] is unenforceable with respect to an IAC claim that challenges the voluntariness of the waiver"); 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 plea bargain); Abarca, 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 -3Case 2:04-cr-01229-NVW Document 47 Filed 10/31/2006 Page 3 of 6

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n.4 (declining to decide whether waiver of all statutory rights included claims implicating the voluntariness of the waiver). Provided that his sentences were consistent with the terms in his plea agreement, Movant expressly agreed that he waived (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." (Doc.# 22 at 5.) In addition, Movant expressly acknowledged that his "waiver shall result in the dismissal of any appeal or collateral attack defendant might file challenging his conviction or sentence in this case." (Id. at 5.) Moreover, Movant expressly agreed that his waiver applied to his "sentences for the new offense and the supervised release violation." (Id.) The plea agreement set forth possible sentencing ranges, depending on Movant's criminal history and other factors. A section of the plea agreement labeled "Supervised Release Sentence" provided that: The parties agree the defendant's sentence for the supervised release violation shall not exceed the middle of the applicable policy statement range. The parties have no agreement regarding whether the sentences for the new offense and the supervised release violation will run concurrently or consecutively. (Id. at 4.) Movant does not dispute that his sentence for the supervised release violation

19 complies with these provisions of the plea agreement. (Id. at 2-4.) 20 In the factual basis portion of the plea agreement, Movant stated in relevant part that 21 he was not a United States citizen or national, that he had previously been deported, excluded 22 or removed from the United States, that he was thereafter voluntarily present in the United 23 States without the express consent of the Secretary of the Department of Homeland Security 24 and that he was previously convicted of Transportation of Illegal Aliens on September 2, 25 1997 for which he was sentenced to 8 months in prison, which was the basis for the 26 aggravated sentence for the criminal charge. (Id. at 8.) On the first page of the plea 27 agreement Movant "agree[d] to admit the allegation of a Grade B violation of the defendant's 28 -4Case 2:04-cr-01229-NVW Document 47 Filed 10/31/2006 Page 4 of 6

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supervised release conditions pending in CR 05-50012-PHX-NVW." (Id. at 1.) Both Movant and his attorney signed the acceptance and approval of the agreement stating they had discussed the terms of the plea agreement and that Movant's decision to enter into the agreement was voluntary. (Id. at 8-9.) On March 31, 2005, the Court conducted Movant's allocution during which Movant expressly testified that he had discussed the plea agreement with his attorney, (Doc.# 35 at 8-9.) The Court found that Movant understood: (1) the nature of the charge to which the plea was offered; (2) his rights to a jury trial, to persist in a plea of not guilty, to the assistance of counsel at trial, to confront and cross-examine adverse witnesses, and against compelled self-incrimination; and (3) the maximum possible sentence, applicability of the sentencing guidelines and the possibility of a departure therefrom under some circumstances. (Id. at 30.) Further, the Court found that Movant was competent to plead guilty, that his guilty plea was knowingly and voluntarily made and not the result of force, threats or promises apart from those contained in the plea agreement, as well as a factual basis for the plea, and recommended that the Court accept the guilty plea. (Id.) Movant expressly agreed that he understood that he could receive prison sentences for both the new criminal charge of illegal re-entry and for violating a condition of his supervised release and that the sentences could run consecutively. (Id. at 12-13, 14, 17, 20-22.) He also agreed that he understood that he would be admitting that he violated the terms of his supervised release. (Id. at 17-20.) The Court accepted Movant's guilty plea to illegal re-entry and admission that he had violated a condition of supervised release by doing so. (Id. at 30, 32, 37.) Movant was sentenced in accordance with the terms of his plea agreement, which he expressly accepted and approved. Movant was found to be competent and to have voluntarily and knowingly entered into the agreement. Movant does not challenge his waiver as involuntary or not knowingly made, nor does he allege that the ineffective assistance of counsel rendered it so. Because Movant validly waived the right to direct or collateral review and he does not dispute that he knowingly and voluntarily entered into the plea -5Case 2:04-cr-01229-NVW Document 47 Filed 10/31/2006 Page 5 of 6

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agreement and waived the right to direct or collateral review, his motion will be summarily denied. Conclusion Movant has failed to present any claim that could possibly result in relief. Accordingly, his motion to vacate pursuant to § 2255 will be dismissed. IT IS ORDERED: (1) Movant's motion to vacate is summarily dismissed. (Doc.# 43.) (2) The Clerk of Court must enter a judgment of dismissal of the Amended Motion (doc.# 43) and the accompanying civil action, CV 06-2022-PHX-NVW (LOA). DATED this 31st day of October 2006.

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