Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

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LMH

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Jose Alfredo Lopez,

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Movant/Defendant.
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No. CR 03-928-PHX-SRB No. CV 05-813-PHX-SRB (DKD) ORDER

In his third attempt to file a motion pursuant to 28 U.S.C. § 2255, Movant has filed a "Motion to Amend" (Dkt. #33). The Court will consider the pleading as a Second Amended Motion pursuant to 28 U.S.C. § 2255 and summarily deny the motion. A. Procedural Background. Movant pled guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326. On December 8, 2003, he was sentenced to a term of fifty-seven months to be followed by three years on supervised release. See Dkt. #19. On March 16, 2005, the Court received a motion to vacate sentence. The Court dismissed the motion because it was illegible and not on the court-approved form. Movant filed a first amended motion, which the Court dismissed because he failed to indicate how his constitutional rights were violated. Movant was mailed a court-approved form and ordered to use it for a second amended motion. Presently pending before the Court is "Movant's Motion to Amend" (Dkt. #33).

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In present motion, Movant states that he is attempting to comply with the Court's Order requiring him to file a second amended motion. Although the "motion to amend" is not in technical compliance with the Court's earlier orders requiring use of a court-approved form, the Court will consider it because it is understandable. Movant contends that his sentence violates the Sixth Amendment because it was increased based upon facts found by the Court regarding aggravating circumstances and regarding his prior conviction, in violation of United States v. Booker, 125 S. Ct. 738 (2005).1 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. Waiver. Petitioner has waived his claim in his plea agreement. The Ninth Circuit Court of Appeals has found that there are "strict standards for 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,

Movant also relies upon Blakely v. Washington, 542 U.S. 296 (2004) to claim that his sentence was increased based on findings of fact made by the court; however, this claim is now governed by Booker, 125 S. Ct. 738. See Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005), pet. for cert. filed, No. 05-5130 (May 17, 2005).
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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, provided 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. (Doc. #21 at 5). Second, Movant indicated in his plea that he had discussed the terms with his attorney, that he agreed to the terms and conditions, and that he entered into it voluntarily. (Doc. #21 at 6-7.) Third, the Court accepted the plea and its waiver. In its Judgment of Sentence, the Court explicitly found that Movant was sentenced in accordance with the terms of the plea agreement, that he waived his right to appeal and to collaterally attack this matter, and that his waiver was knowingly and voluntarily made. See Dkt. #23 at 3. 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), pet. for cert. filed, No. 05-5113 (June 30, 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). Recently, the Ninth Circuit Court of Appeals held that a claim of ineffective assistance of counsel that challenges the voluntariness of a waiver does not, however, preclude jurisdiction over a habeas action pursuant to 28 U.S.C. § 2254. Washington v. Lampert, ___ F.3d ___, 2005 WL 2126606,
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at *6-*7 (9th Cir. Sept. 6, 2005). Similarly, for § 2255, 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, 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). None of Movant's claims fit this exception. Movant expressly waived issues regarding the imposition of sentence and expressly waived a § 2255 action. The Court accepted his plea as voluntarily made. 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). In addition, Movant's Booker claim does not render his plea involuntary or unknowing. United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005) (holding that a change in the law, i.e. Booker, did not render a plea involuntary or unknowing). Consequently, the Court finds that Movant waived the Booker claim raised in his § 2255 motion. Finally, even if Movant's Booker claim had not been waived by his plea, the claim is precluded under retroactivity principles. Booker issued on January 12, 2005, long after Movant's conviction became final. See Beard v. Banks, 124 S. Ct. 2504, 2510 (2004) (describing finality). The Ninth Circuit Court of Appeals recently joined the Second, Third, Sixth, Seventh, Tenth and Eleventh Circuits in holding that Booker does not apply retroactively. United States v. Cruz, ___ F.3d ___, 2005 WL 2243113 (9th Cir. Sept. 16, 2005) (per curiam). Because Movant's conviction became final before Booker was decided, the holding in Booker could not possibly afford him any relief.

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IT IS THEREFORE ORDERED that Movant's "Motion to Amend" (Dkt. #33), construed as a Second Amended Motion, is denied. The Clerk of Court shall enter a judgment of dismissal of this action and the accompanying civil action (CV 05-813-PHXSRB (DKD)).

DATED this 30th day of September, 2005.

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