ANTHONY W. ISHII, Senior District Judge.
This matter arises from the guilty plea of Petitioner Abel Heriberto Fabian-Baltazar ("Petitioner"). Petitioner is currently incarcerated at the Taft Correctional Institution. Petitioner brings a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255 based on ineffective assistance of counsel. Petitioner lists three grounds to support his claim for ineffective assistance of counsel: (1) failure to file a notice of appeal after sentencing as expressly requested by Petitioner, (2) failure to object to the Government's breach of the plea agreement and the safety valve reduction, and (3) failure to file a motion to suppress evidence seized in an unlawful search. For the following reasons, Petitioner's motion pursuant to section 2255 will be denied.
On December 18, 2012, near Madera, California, California Highway Patrol ("CHP") officers conducted a traffic stop on a 2009 Honda Civic. The driver was identified as Abel Heriberto Fabian-Baltazar on his Mexican driver's license and passport. The CHP service canine alerted the officers to the odor of narcotics. Petitioner then consented to a search of the vehicle. A search of the trunk revealed many scented items including Bounce fabric sheets, dish soap, bleach and a bag of laundry detergent, which officers believed were being utilized as masking agents. The trunk also contained a box of Fresh Step kitty litter, which when picked up and shaken, did not feel like kitty litter, but instead bulky items shifted inside the box. Upon opening the litter box, officers found six separate Ziploc bags, all containing packaged quantities of methamphetamine. Petitioner was then placed under arrest. Officers seized the vehicle's registration confirming that the vehicle was registered to Petitioner. Officers also found travel documents revealing that Petitioner had flown into San Jose, California, from Guadalajara, Mexico, on December 13, 2012, with intentions of returning to Mexico, on December 24, 2012.
Petitioner was charged with possession with intent to distribute methamphetamine in violation of Title 21 United States Code §§ 841(a)(1) and (b)(1)(A); and a forfeiture allegation pursuant to Title 21, United States Code § 853. On August 5, 2013, Petitioner and the Government entered a plea agreement in which the Petitioner pled guilty to Count One, possession with intent to distribute 50 grams or more of methamphetamine. Doc. 21 at 2:4-6. On December 16, 2013, Petitioner was sentenced to 120 months in prison. Doc. 27. On June 23, 2014, Petitioner filed this motion pursuant to 28 U.S.C. § 2255. Doc. 29. The motion is ripe for screening.
Title 28 U.S.C. § 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." Habeas relief is available to correct errors of jurisdiction and constitutional error but a general "error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice."
Under Rule 4(b) of the Rules Governing section 2255 Proceedings, when a court receives a section 2255 motion, the court must initially screen it, and dismiss it summarily if it plainly appears that the moving party is not entitled to relief.
Courts must "construe pro se habeas filing liberally."
"The Sixth Amendment guarantees criminal defendants the effective assistance of counsel."
To establish a constitutional violation for ineffective assistance of counsel actionable under section 2255, petitioner must demonstrate (1) a deficient performance by counsel, and (2) prejudice to petitioner.
Petitioner contends that trial counsel was ineffective for failing to file a "notice of appeal" with the Court after his sentence was imposed. A notice of appeal was not filed because Petitioner waived his right to appeal. Petitioner maintains that he had discussed an appeal both before and after his sentencing. Doc. 29 at 5.
Despite the petitioner having understood and subsequently having waived his right to appeal, the court in
The Petitioner states in his moving papers that "but for his attorney's deficient performance, he would have taken an appeal...." Doc. 29 at 8. Accordingly, Petitioner alleges facts that, if true, meet the requirements set out in
However, this case is distinguishable from
The general rule is that a waiver cannot bar a claim that relates to the validity of the waiver itself.
The section 2255 motion filed by Petitioner is a form of collateral relief encompassed by the plea agreement. In addition, Petitioner has made no claim in his section 2255 motion that the waiver of his right to collaterally attack his conviction and sentence was not knowingly and voluntarily made. Therefore, the Court finds that Petitioner knowingly and voluntarily entered into the plea agreement waiving his right to collateral attack, and the Court will enforce this agreement. Accordingly, the Court finds that Petitioner is not entitled to an evidentiary hearing on this claim as Petitioner does not have a meritorious claim. This claim will be dismissed.
In Petitioner's second ground for ineffective assistance of counsel, he contends that defense counsel failed to object to the Government's breach of the plea agreement. Petitioner maintains that he meets the safety valve criteria and that the statutory minimum sentence of ten years does not apply. The statutory minimum term of imprisonment for possession with intent to distribute methamphetamine is 10 years. 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A). Petitioner pled guilty to possession with intent to distribute 50 grams or more of methamphetamine. Doc. 21 at 2:4-5. Petitioner's plea agreement specified that the mandatory minimum term of imprisonment for the offense was ten years imprisonment. Doc. 21 at 7. Nowhere in the plea agreement is there any representation or promise by the government that the mandatory minimum would not apply. Doc. 21. Rather, the government agreed to recommend an acceptance of responsibility reduction and a "safety valve" reduction. Doc. 21 at 5.
In order to evaluate this claim the Court must explain the sentencing calculation. The Court recently ordered the release of the presentence report to Petitioner at the request of the Federal Defender. Doc. 32. The guideline calculation found therein is consistent with the Court's own calculation using the 2013 Sentencing Guidelines, and is as follows: The base offense level was 38 because Petitioner was found to be in possession of 2,636 grams of actual methamphetamine. U.S.S.G. § 2D1.1(c)(1) (2013); Doc. 24 at 6. Petitioner then received a 2-level "safety valve" reduction in accordance with U.S.S.G. § 2D1.1(b)(16) because he met the criteria set forth in subdivisions (1)-(5) of subsection (a) of U.S.S.G. § 5C1.2. U.S.S.G. § 2D1.1(b)(16) (2013); Doc. 30 at 7; Doc. 24 at 6. Petitioner also received a 3-level departure for acceptance of responsibility and assistance with authorities in the investigation. U.S.S.G. 3E1.1; Doc. 30 at 7; Doc. 24 at 6. This resulted in a total offense level of 33. Petitioner had a criminal history category of I. The sentencing guidelines provided for a range of imprisonment exceeding the statutory minimum, specifically 135 to 168 months. The government recommended that the Court sentence Petitioner to a low-end guideline sentence of 135 months. Doc. 26 at 2:17-18. Petitioner was sentenced below the government's recommendation of 135 months, to the mandatory minimum; 120 months.
Petitioner's final ground of ineffective assistance of counsel is that defense counsel failed to file a meritorious motion to suppress evidence seized in violation of the Fourth Amendment. Petitioner contends that he was unlawfully stopped for a traffic stop because he was racially profiled. "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."
Unless a circuit justice or district judge issues a certificate of appealability ("COA"), an appeal may not be taken to the court of appeals from a final decision of a district judge in a habeas corpus proceeding or a proceeding under 28 U.S.C. § 2255. 28 U.S.C. § 2253(c)(1);
Here, jurists of reason would not find it debatable whether Petitioner's motion states a valid claim of the denial of a constitutional right. The plea agreement demonstrates on its face a knowing and voluntary waiver of the right to challenge the sentence under section 2255, and Petitioner has not raised new facts or allegations demonstrating the contrary. Petitioner's grounds for ineffective assistance of counsel fail to show denial of a constitutional right. There are no facts to show that the government breached the plea agreement, and Petitioner's entry of a voluntary guilty plea waived any antecedent constitutional violations. Hence, the Court declines to issue a COA.
Based on the foregoing, it is hereby ORDERED that:
Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 21 U.S.C. § 2255 is DISMISSED;
The Court DECLINES to issue a certificate of appealability.