United States v. Sotelo
| Decision Date | 21 March 2022 |
| Docket Number | 2:14-cr-0113 KJM DB |
| Parties | UNITED STATES OF AMERICA, Respondent, v. MIGUEL SOTELO, Movant. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS AND ORDER
Movant a federal prisoner, proceeds pro se with a motion to vacate set aside, or correct his sentence pursuant to 28 U.S.C § 2255. Movant pleaded guilty to possession with intent to distribute methamphetamine in 2015 and asserts ineffective assistance of counsel and other errors in connection with his guilty plea and sentencing. The motion to vacate (ECF No. 51), amended motion to vacate (ECF No. 63), government's opposition (ECF No. 84), and movant's reply (ECF No. 86) are before the court.
For the reasons set forth, the undersigned will direct the government to inform the court, pursuant to United States v. Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005), whether it elects to pursue an evidentiary hearing on movant's claim that trial counsel failed to file a notice of appeal. The undersigned will recommend the court deny movant's other grounds for relief as barred by his waiver of the right to collaterally attack the sentence, as set forth in the plea agreement.
On July 16, 2015, movant pleaded guilty to Count I of the indictment, possession with intent to distribute at least 50 grams of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 27 at 2; ECF No. 50 at 12.) In exchange for movant's guilty plea, two other counts were dismissed. In addition, the government promised to recommend a sentence at the low end of the applicable United States Sentencing Guidelines (“USSG” or “Guidelines”) range, as determined by the court, and to seek a reduction in exchange for movant's substantial assistance. (ECF No. 27 at 1, 2, 5; ECF No. 50 at 6, 12.)
The plea agreement provided “[i]f the defendant violates this plea agreement in any way, withdraws his plea, or tries to withdraw his plea, this plea agreement is voidable at the option of the government. (Id. at 3.) In that case, “[t]he government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein.” (Id. at 3-4.)
As part of the plea agreement, movant waived his right to appeal unless the government appealed or the court imposed a sentence in excess of 192 months or the statutory maximum. (ECF No. 27 at 9.) The plea agreement stated, specific to collateral attack, “regardless of the sentence the defendant receives, the defendant also gives up any right to bring a collateral attack, including a motion under 28 U.S.C. § 2255 or § 2241, challenging any aspect of the guilty plea, conviction, or sentence, except for non-waivable claims.” (Id. at 9-10.)
On November 12, 2015, the court sentenced movant to a 132-month term of imprisonment and imposed a fine in the amount of $25, 000. (ECF No. 83 at 12.) Judgment was entered on November 19, 2015. (ECF No. 35.) An amended judgment correcting a clerical error was entered on December 4, 2015. (ECF No. 36.)
On February 4, 2016, movant filed a pro se belated notice of appeal accompanied by a supporting statement in which he described attempts to contact his retained counsel, Paul Irish, about filing a notice of appeal. (ECF No. 37.) The appeal was processed to the United States Court of Appeals for the Ninth Circuit. (ECF No. 38.)
On May 18, 2016, the Ninth Circuit dismissed movant's appeal as untimely. (ECF No. 43.) The order of dismissal stated the dismissal did not foreclose movant from filing a 28 U.S.C. § 2255 motion in the district court claiming ineffective assistance of counsel for failure to file a notice of appeal. (Id.)
Movant filed the initial motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on April 24, 2017. (ECF No. 51.) On March 7, 2019, movant requested leave to amend and filed an amended motion under 28 U.S.C. § 2255. (ECF Nos. 62, 63.) The amended motion incorporates movant's initial motion and sets forth three additional grounds for relief. The government's opposition (ECF No. 84) has responded to all grounds asserted.
Additional claims may relate back to timely filed § 2255 motions. See Fed.R.Civ.P. 15(c); Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). An amendment relates back if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). Pro se motions from prisoners are to be liberally construed. United States v. Jackson, 21 F.4th 1205, 1216 (9th Cir. 2022). Movant's request to amend and add the three additional claims is granted.
Movant presents the following five grounds for relief:[1] (1) counsel failed to file a notice of appeal after movant instructed counsel to file a notice of appeal (ECF No. 51 at 4); (2) counsel failed to fully investigate movant's prior criminal history in preparation for sentencing (Id. at 5); (3) movant is eligible for safety valve treatment under 18 U.S.C. § 3353(f) based on subsequent Ninth Circuit authority to be applied retroactively (ECF No. 63 at 1-2); (4) counsel failed to conduct a proper investigation for the purposes of arguing favorable factors under 18 U.S.C. § 3553(a) at sentencing (Id. at 2-3); and (5) the court erred in imposing a fine and counsel invited the error by failing to argue movant's § 3553 equities (Id. at 3).
The government contends movant waived his right to collaterally attack the sentence. (ECF No. 84 at 13-17.) The government also argues movant's prior conviction remains a controlled substance offense unaffected by subsequent Ninth Circuit authority\, movant's fine was not imposed in error, and movant failed to allege sufficient facts to establish his counsel was ineffective. (Id. 21-33.) As to counsel's alleged failure to file the notice of appeal, the government agrees movant initially instructed Mr. Irish to file a notice of appeal on his behalf. (Id. at 20.) However, the government argues the claim should be dismissed or denied because the government contends movant omitted critical facts in presenting the claim and because the government contends movant, through a third party, ultimately instructed counsel not to file a notice of appeal. (Id. at 17-20.)
Section 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.” See also Davis v. United States, 417 U.S. 333, 344-45 (1974). To warrant relief, the prisoner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“Brecht's harmless error standard applies to habeas cases under section 2255[.]”). Relief is warranted only upon the showing of “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346.
Under section 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section, ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis in original) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
Specific to collateral attacks, movant's plea agreement waived “any right to bring a collateral attack, including a motion under 28 U.S.C. § 2255” challenging “any aspect of the guilty plea, conviction, or sentence, except for non-waivable claims.” (ECF No. 27 at 9-10.) The government contends movant's claims are barred by this collateral attack waiver, except for the claim alleging counsel failed to file a notice of appeal. (ECF No. 84 at 13.)
A defendant may waive the statutory right to collaterally attack his sentence or conviction. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Such a waiver is enforceable if “(1) the language of the waiver encompasses [the defendant's] right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Goodall, 21 F.4th 555, 561 (9th Cir. 2021) ().
Nevertheless a waiver does not bar a claim that challenges the validity of the waiver itself. See Abarca, 985 F.2d at 1014 (“we do not hold [the] waiver categorically forecloses… any section 2255 proceeding, such as a claim of ineffective assistance of counsel or...
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