CINDY K. JORGENSON, District Judge.
Pending before the Court is the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV 15-046, Doc. 1; CR 11-2275, Doc. 38) filed by Movant Jesus Arcila-Torres ("Arcila-Torres").
On June 29, 2011, Arcila-Torres was indicted on one count of Re-Entry After Deportation. The matter was scheduled for a change of plea hearing on May 2, 2012. During the hearing, the following occurred:
Change of Plea Transcript (Doc. 40) ("COP Tr."), pp. 3-4.
Id. at p. 6
Id. at p. 7
Id. at p. 8.
The plea agreement stated that the offense was subject to a maximum term of imprisonment of 20 years, but provided ranges of sentences Arcila-Torres faced depending on the offense level and criminal history. The plea agreement also provided that the "precise level of offense and number of months sentence imposed will be determined by the court based upon the defendant's criminal record." Plea Agreement, Doc. 26, p. 4.
This matter proceeded to sentencing on July 12, 2012. During the sentencing proceeding, the Court stated:
Sentencing Transcript (Doc. 41) ("SE Tr."), pp. 3-4. Additionally, the following occurred at the sentencing proceeding:
Id. at p. 4.
Id. at p. 7. Arcila-Torres was sentenced to a 75 month term of imprisonment to be followed by a 36 month term of supervised release.
On or about September 12, 2014, Arcila-Torres sent a letter to the Clerk of Court which informed the Court that Arcila-Torres had made several attempts to contact his attorney. Attached to the letter to the Clerk of Court is a copy of a September 12, 2014, letter Arcila-Torres sent to counsel requesting a copy of his plea agreement, the indictment, judgment of conviction, motions and other information. On September 18, 2014, the letter and attachment was docketed as a Motion to Vacate and a civil case was initiated. See CV 14-2381-TUC-CKJ. On October 3, 2014, Arcila-Torres submitted a supplemental filing in which he refers to the September 18, 2014, letter to counsel as the original request to counsel. Arcila-Torres also stated that he did not have the documents or records in which he could prepare § 2255 briefs.
On or about October 29, 2014, the Court ordered the Clerk of Court to administratively close the case, enter judgment accordingly, and correct docket entry No. 37 in CR 11-2275-TUC-CKJ to reflect that the filing at that entry is a letter that required no order from the Court. The Court also directed that a court-approved form for filing a Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (28 U.S.C. §2255) be mailed to Arcila-Torres.
On January 29, 2015, Arcila-Torres filed the pending Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to Title 28, United States Code, Section 2255 regarding his conviction in CR-11-2275-TUC-CKJ. A response and a reply have been filed.
A waiver generally will be enforced if the agreement, by its terms, expressly waives the right and the waiver is knowingly and voluntarily made. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Vences, 169 F.3d 611 (9th Cir. 1999)(sentence was not illegal where it was authorized by the judgment of conviction and was not in excess of the statutory penalty). In this case, the plea agreement provided that Arcila-Torres waived any right to appeal the Court's entry of judgment or sentence and waived any right to collaterally attack his conviction and sentence under 28 U.S.C. § 2255 or any other collateral attack. The plea agreement further precludes Arcila-Torres from filing any and all motions attacking the judgment and sentence providing the sentence was consistent with the plea agreement. Arcila-Torres's sentence of 75 months is consistent with the plea agreement and its stipulated ranges of sentence.
However, the Ninth Circuit has left "open the possibility that [a habeas petitioner] might raise [an] ineffective assistance argument on federal habeas procedure, through a § 2255 motion, notwithstanding that [his] appeal waiver covered `all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence.'" United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (overruled on other grounds by United States v. Jacobo-Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc)). "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [deficient]." Tollett v. Henderson, 411 U.S. 258, 267 (1973). Indeed, "[a] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases." United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988); see also United States v. Ruiz, 241 F.3d 1157, 1165 (9th Cir. 2001) (reversed on other grounds, quoting DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir. 2000) ("a `decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside the range of competence'")).
If Arcila-Torres's decision to enter the plea of guilty was based on the erroneous advice of counsel, it cannot be said that the decision to enter the plea of guilty was knowing and voluntary. The Court finds Arcila-Torres has not waived the right to bring this § 2255 motion.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for 28 U.S.C. § 2255 motions. See 28 U.S.C. § 2255; United States v. Skurdal, 341 F.3d 921 (9th Cir. 2003). The limitations period runs from the latest of:
United States v. Monreal, 301 F.3d 1127, 1131 n.** (9th Cir. 2002) (quoting 28 U.S.C. § 2255).
A judgment of conviction becomes final at "the end of the time available for direct appeal." United States v. Garcia, 210 F.3d 1058, 1061, n.4 (9th Cir. 2000); see also Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987). Judgment was entered in this case on July 12, 2012. Arcila-Torres had 14 days from that date to file a notice of appeal, Fed.R.App.P. 4(b)(1)(A), which he did not do. For purposes of calculating the limitations period, the judgment of conviction became final on July 26, 2012. Therefore, neither the September 18, 2014, nor the January 29, 2015, motion were filed within the one year limitations period. The Court finds Arcila-Torres's § 2255 motion was not timely filed.
The Ninth Circuit has held that the statute of limitations may be equitably tolled in a 28 U.S.C. § 2255 action if "(1) the petitioner has diligently pursued his rights, and (2) extraordinary circumstances exist." United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also United States v. Battles, 362 F.3d 1195, 1196-97 (9th Cir. 2004). Few cases justify equitable tolling, Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005), and "the threshold necessary to trigger equitable tolling . . . is very high." Aguirre-Ganceda, quoting Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006)). Moreover, the burden to establish the requirements of equitable tolling is on a petitioner. Pace, 544 U.S. at 418; see also Holland v. Florida, 560 U.S. 631 (2010) (petitioner must establish he is entitled to equitable tolling in § 2254 action). Indeed, "[e]quitable tolling is not even a possibility until a petitioner submits proof that external forces, and not a petitioner's lack of diligence, accounted for the failure to file a timely petition." Smith v. Ratelle, 323 F.3d 813, 821 (9th Cir. 2003); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008. 1011 (9th Cir. 2009), quoting Harris v. Carter, 515 F.3d 1051, 1054 (9th Cir. 2008) (applying "the doctrine in `extraordinary circumstances' necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances `stood in his way' suggests that an external force must cause the untimeliness, rather than, as we have said, merely "oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling'").
Arcila-Torres asserts he was delayed by counsel's failure to provide him with his case documents. In an effort to obtain the case documents, Arcila-Torres also submitted a letter to this Court and made a request pursuant to the Freedom of Information Act. The Ninth Circuit has recognized that the egregious misconduct of an attorney in failing to return a file to a client may justify equitable tolling. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003). However, a petitioner must also show that he exercised reasonable diligence. Id. at 802 (quoting Id. at 802 (quoting Valverde v. Stinson, 224 F.3d 129, 134 (4th Cir. 2000) ("if the person seeking equitable tolling has not exercised reasonable deligence (sic) in attempting to file, after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken").
While the September 12, 2014, letter to the Clerk of Court refers to several attempts by Arcila-Torres to contact his attorney, the documents also refer to the original September 12, 2014, request to counsel. Arcila-Torres has made no allegation as to when he first sought to receive records from counsel. In other words, Arcila-Torres has not alleged he first sought the documents shortly after the judgment of conviction was entered, which would indicate reasonable diligence. Conversely, Arcila-Torres has not alleged that his first efforts to contact counsel were only a few weeks before the submission of September 12, 2014, letter, which would indicate that Arcila-Torres did not exercise reasonable diligence.
Further, Arcila-Torres attaches documents to his reply. While these documents establish Arcila-Torres was seeking documents in 2013, they do not establish that he acted with reasonable diligence. For example, although the June 17, 2013, correspondence from the United States Department of Justice indicates Arcila-Torres was seeking documents at that time, the documents indicate what actions Arcila-Torres must take before his request could be acted upon — Arcila Torres has not shown that he diligently complied with the requirements (e.g., agreement to pay fee or request a fee waiver). Similarly, Arcila-Torres has attached a January 28, 2013 letter from the Clerk of Court directing Arcila-Torres to specify which documents he sought copies of — Arcila-Torres has not shown that he took any actions in response to this request.
The government raised the statute of limitations issue in its response. Although Arcila-Torres could have alleged additional facts in his reply to support a claim of equitable tolling, he did not. The Court finds Arcila-Torres has failed to meet the burden of establishing the requirements of equitable tolling — Arcila-Torres has not shown or alleged that external forces, as opposed to his lack of diligence, accounted for the failure to file a timely petition.
The Court finds Arcila-Torres has not established extraordinary circumstances warranting equitable tolling. The Court will dismiss Arcila-Torres's habeas petition as untimely. However, the Court will also briefly address the merits of Arcila-Torres's petition.
To prevail on a claim of ineffective assistance of counsel, Arcila-Torres must satisfy a two prong test, demonstrating: (1) deficient performance, such that counsel's actions were outside the wide range of professionally competent assistance, and (2) that Arcila-Torres was prejudiced by reason of counsel's actions. Strickland v. Washington, 466 U.S. 668, 686-90, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984); Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998). "Failure to satisfy either prong of the Strickland test obviates the need to consider the other." Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002).
Arcila-Torres asserts that counsel was ineffective by incorrectly advising Arcila-Torres of the sentencing range he faced under the plea agreement. Where a claim involves alleged occurrences outside the record, a hearing is not required if the allegations "viewed against the record, either fail to state a claim for relief or are `so palpably incredible or patently frivolous as to warrant summary dismissal.'" Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985), quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984). Where the allegations of a petitioner contradict statements made in court, credibility must be assessed. Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989). An evidentiary hearing is not required where the issue of credibility may be "conclusively decided on the basis of documentary testimony and evidence in the record." Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988).
Additionally, the plea agreement stated that the possible maximum term of imprisonment faced by Arcila-Torres and provided the ranges of sentences Arcila-Torres faced depending on the offense level and criminal history. The plea agreement also provided that the "precise level of offense and number of months sentence imposed will be determined by the court based upon the defendant's criminal record." Plea Agreement, Doc. 26, p. 4.
In light of the statements made by counsel and Arcila-Torres in open court and the provisions of the plea agreement, the Court finds Arcila-Torres has failed to state a claim for ineffective assistance of counsel. Rather, the record establishes counsel discussed not only the best-case scenario as to the criminal history category, but also that it was not known what the sentencing range would be. Further, although the statements imply counsel advised Arcila-Torres of all possible sentencing ranges, even if counsel did not explain all of the options, the plea agreement provided the possible ranges of sentence to Arcila-Torres and Arcila-Torres stated that he understood the maximum penalty he faced. Additionally, Arcila-Torres stated he understood what was going on, had discussed the case with counsel, was not threatened or forced to enter a plea of guilty, and had not received any promises other than those contained within the plea agreement. The Court finds Arcila-Torres is not entitled to habeas relief on this claim.
Rule 11(a), Rules Governing Section 2255 Proceedings, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the motion is brought pursuant to 28 U.S.C. § 2255. This Court must determine, therefore, if a COA shall issue.
The standard for issuing a COA is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. In the certificate, the Court must indicate which specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).
This Court determined that Arcila-Torres's motion is untimely under the one-year statute of limitations of the AEDPA. This Court further determined that there is no basis for equitable tolling of the statute of limitations. Additionally, the Court has determined that ineffective assistance of counsel has not been established. The Court finds that jurists of reason would not find it debatable whether the motion stated a valid claim of the denial of a constitutional right and the Court finds that jurists of reason would not find it debatable whether this Court was correct in its procedural rulings. A COA shall not issue as to Arcila-Torres's claim.
Any further request for a COA must be addressed to the Court of Appeals. See Fed. R.App. P. 22(b); Ninth Circuit R. 22-1.
Accordingly, IT IS ORDERED:
1. Arcila-Torres's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV 15-046, Doc. 1; CR 11-2275, Doc. 38) is DENIED.
2. Cause No. CV 15-046 is DISMISSED, and;
3. The Clerk of the Court shall enter judgment and shall then close its file in Cause No. CV 15-046.
4. A Certificate of Appealability shall not issue in this case.