REPORT AND RECOMMENDATION

DAVID K. DUNCAN, Magistrate Judge.

Petitioner Carlos Antonio Garcia-Hurtado filed this Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("Section 2255 Motion") after he had entered a plea of guilty to one count of conspiracy to possess with intent to distribute marijuana and one count of conspiracy to launder monetary instruments, and was sentenced to a term of 168 months to be followed by a term of supervised release. (Doc. 16, Ex. I) He argues that he is entitled to relief because he received ineffective assistance of counsel. (Doc. 1 at 4) As explained below, the Court recommends that his Section 2255 Motion be denied.

BACKGROUND

On February 9, 2015, Garcia-Hurtado was sentenced after he had been found guilty, pursuant to a plea agreement. (Docs. 16-2, 16-3, 16-8, 16-9) At sentencing, Garcia-Hurtado answered "no" both when the Court asked him "did anyone attempt to threaten you or intimidate you or force you or coerce you in any way to get you to enter into this Plea Agreement?" and when the Court asked him "Did anyone make any promises to you as a way to convince you to enter into the Plea Agreement other than the promises that are contained in the written Plea Agreement?" (Doc. 16-3 at 6-7) The Plea Agreement does not refer to a substance abuse treatment program. (Doc. 16-2) At the conclusion of the plea colloquy, the Court recommended that Garcia-Hurtado's plea be accepted. (Doc. 16-3 at 28)

Both in a pre-sentencing written submission and during the sentencing hearing, Garcia-Hurtado's counsel, Richard Suzuki, argued that Garcia-Hurtado should be allowed to participate in the Federal Bureau of Prisons' Residential Drug Abuse Treatment Program, also known as the 500 Hour Program or RDAP. (Doc. 16-5 at 4; 16-8 at 18) The probation officer who attended Garcia-Hurtado's sentencing agreed that "he should use the program" but cautioned that he might not be eligible for it. (Doc. 16-8 at 19) The Court agreed to recommend that Garcia-Hurtado participate in the treatment program. (Doc. 16-8 at 25: 10-16 and 26:10-11; Doc. 16-9 at 1)

After sentencing, Garcia-Hurtado was transferred to the custody of the Federal Bureau of Prisons ("BOP") where, apparently, he was denied access to RDAP.

DISCUSSION

In his Section 2255 Motion, Garcia-Hurtado alleges that his counsel was ineffective because Mr. Suzuki convinced him to sign the plea agreement by advising Garcia-Hurtado "not to worry because [he] would be eligible for the one year early release offered as an incentive for participating and successfully completing the `RDAP'" (Doc. 1 at 4) To prevail on his claim of ineffective assistance of counsel, Garcia-Hurtado would have to show that his attorney's performance was deficient and that he was prejudiced as a result of that deficiency. Strickland v. Washington, 466 U.S. 668 (1984). Based on the record before the Court, Garcia-Hurtado cannot show either a deficient performance or resulting prejudice.

First, the Court notes that in direction contradiction to his claim in the Section 2255 Motion, Garcia-Hurtado stated during his plea colloquy that there had been no additional promises beyond those in his plea agreement. This representation "constitute[s] a formidable barrier in any subsequent collateral proceedings." Blackledge, 97 S.Ct. 1621, 1629 (1977). See also United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) ("Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea."); United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir. 1993) ("Statements made by a criminal defendant contemporaneously with his plea should be accorded great weight because solemn declarations made in open court carry a strong presumption of verity." (internal quotation marks and brackets omitted)). Moreover, Mr. Suzuki has stated under oath that he did not make any such promise. (Doc. 16-11) Accordingly, the presumption is that no such promise was made.

Next, the Court notes that Garcia-Hurtado cannot show that Mr. Suzuki's performance was deficient. Mr. Suzuki did what Garcia-Hurtado wanted—namely request and receive a recommendation from the Court that Garcia-Hurtado participate in RDAP. Moreover, Garcia-Hurtado participated in his sentencing hearing and so he heard the probation officer comment that he might not be eligible for RDAP. He also heard that the Court, consistent with RDAP's statutory limitations, was recommending—not ordering—his participation in it. 18 U.S.C. § 3621(e)(5)(B). See Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) ("Determining which prisoners are eligible to participate in RDAP is within the discretion of the BOP.") Thus, if Garcia-Hurtado had any questions about the Court's authority to enroll him in RDAP, he had plenty of opportunity to raise those questions during sentencing.

Based on these facts, Garcia-Hurtado has not shown that he received ineffective assistance of counsel.

Motion for Documents and Transcripts. Shortly after he filed his Section 2255 Motion, Garcia-Hurtado asked the Court for a copy of the record. (Doc. 5) It appears that he received all these documents when the United States filed its Response. Accordingly, the Court will deny this motion as moot.

IT IS RECOMMENDED that Carlos Antonio Garcia-Hurtado's Motion to Vacate, Set Aside or Correct Sentence be denied. (Doc. 1)

IT IS ORDERED denying Garcia-Hurtado's Motion for Documents as moot. (Doc. 5)

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a substantial showing of the denial of a constitutional right.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.